State v. Nichols

State v. Nichols  (97-052); 167 Vt. 566; 702 A.2d 77

[Filed 28-Jul-1997]

                          ENTRY ORDER

                 SUPREME COURT DOCKET NO. 97-052

                         JUNE TERM, 1997


State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont,
                                }     Unit No. 3, Caledonia Circuit
Edward M. Nichols               }
                                }     DOCKET NO. 745-8-96Cacr


       In the above-entitled cause, the Clerk will enter:

       Defendant Edward Nichols appeals his conviction of disorderly conduct
  in violation of 13 V.S.A. § 1026.  We affirm.

       First, defendant contends that surplusage in the information permitted
  conviction of a crime not authorized by the Legislature, a claim made for
  the first time on appeal.  A defendant who fails to object to an
  information before trial waives all objections except those that challenge
  the trial court's jurisdiction or allege that the information failed to
  charge an offense.  V.R.Cr.P. 12(b)(2).  Any nonjurisdictional challenges
  to the information will be reviewed only for plain error.  V.R.Cr.P. 52(b). 
  An error is plain only in rare and extraordinary cases where it so affects
  the substantial rights of the defendant that it must be noticed despite
  lack of preservation. State v. Roy, 151 Vt. 17, 23, 557 A.2d 884, 888
  (1989).

       A person may not be convicted of a crime that has not been authorized
  by the Legislature.  See State v. Kreth, 150 Vt. 406, 408, 553 A.2d 554,
  555 (1988) (information that omits essential element of crime charged is
  defective and cannot serve as basis of conviction). The crime of disorderly
  conduct is defined as "intent to cause public inconvenience, or annoyance
  or recklessly creating a risk thereof [by engaging] in fighting or in
  violent, tumultuous or threatening behavior."  13 V.S.A. § 1026.  The
  information charged that defendant engaged in violent, threatening language
  and behavior.  Thus, defendant's claim is not that the information failed
  to charge a crime.  Instead, it is that the information contained more
  allegations than necessary to charge a crime.

       Defendant's alleged behavior was contained within the statutory
  definition of disorderly conduct and was proscribed by 13 V.S.A. § 1026. 
  The use of conjunctive language in the information, requiring the State to
  prove two elements instead of one, did not disadvantage defendant. 
  Defendant has not shown that the alleged error in the information was one
  of substance, or that the surplusage amounted to plain error.  See
  generally 1 C. Wright, Federal Practice and Procedure § 127, at 424 (2d ed.
  1982) ("surplusage is not fatal to the validity of an indictment").

       Next, defendant argues that surplusage in the jury instructions
  permitted the jury to convict him of abusive language without finding that
  the language rose to the level of "fighting words."  See State v. Read, ___
  Vt. ___, ___, 680 A.2d 944, 948 (1996) (abusive language provision of 13
  V.S.A. § 1026(3) is properly construed as proscribing only fighting words). 
  As defendant failed to raise this claim below, we review only for plain
  error.  See Roy, 151 Vt. at

 

  23, 557 A.2d  at 888. The instructions charged the jury to convict defendant
  only if he "engaged in violent, threatening language and behavior." 
  Defendant could not be convicted for language alone; as in the information,
  the reference to threatening language was surplusage, which increased the
  State's burden beyond that required by the statute.  The error was harmless
  and certainly did not reach the level of plain error.  See id.

       For the above reasons we also reject defendant's claim that the jury
  may have convicted him without unanimity because some jurors could have
  based their decision on defendant's language while others could have relied
  on defendant's behavior.  The jury instruction was phrased in the
  conjunctive and required jury unanimity on improper behavior, as well as
  improper language.

       Affirmed.





                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              Ernest W. Gibson III, Associate Justice

                              _______________________________________
                             John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice