State v. Russo

State v. Russo (2003-348); 177 Vt. 394; 177 Vt. 365, 865 A.2d 402

2004 VT 103

[Filed 08-Oct-2004]
[Motion for Reargument Denied 26-Oct-2004]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2004 VT 103

                                No. 2003-348


  State of Vermont	                         Supreme Court

                                                 On Appeal from
       v.	                                 District Court of Vermont,
                                                 Unit No. 1, Windham Circuit

  Vito Russo	                                 June Term, 2004


  Karen R. Carroll, J.

  Dan M. Davis, Windham County State's Attorney, and Scott A. Willison,
    Deputy State's Attorney, Brattleboro, and Jane Woodruff, Executive
    Director, State's Attorneys' and Sheriffs' Department, Montpelier, for
    Plaintiff-Appellee.

  Matthew F. Valerio, Defender General, and Henry Hinton, Appellate Defender,
    Montpelier, for   Defendant-Appellant.


  PRESENT:  Amestoy, C.J., (FN1) Dooley, Johnson, Skoglund and Reiber, JJ.

        
       ¶  1.  DOOLEY, J.  Defendant, Vito Russo, was convicted by a jury of
  aggravated assault, unlawful trespass, driving under the influence of
  intoxicating liquor, driving with license suspended and four violations of
  conditions of release.  He received a sentence of twenty-one years to
  serve.  He appeals both his conviction for aggravated assault (FN2) and his
  combined sentence claiming that: (1) the evidence does not support his
  conviction; (2) the trial judge wrongfully limited testimony from the sole
  defense witness; (3) the trial judge failed to charge simple assault and
  reckless endangerment as either lesser-included or lesser-related offenses;
  (4) the twenty-one year sentence was based on a pre-sentence investigation
  (PSI) report containing a psychological evaluation conducted by a
  non-expert who was unavailable for cross-examination; and (5) trial counsel
  was ineffective. (FN3)  Having considered those issues preserved for
  appeal, we affirm the conviction. 

       ¶  2.  In addition to the claims considered in this appeal, defendant,
  in his pro se brief, raises ten other arguments, not properly preserved for
  appeal.  Defendant alleges that: (1) the rifle found in his car was the
  fruit of an illegal search; (2) the trial court allowed the State's
  witnesses to testify based upon hearsay and speculation; (3) limitations on
  the scope of cross-examination violated defendant's right to confront the
  State's witnesses; (4) the prosecutor's friendship with the victim and
  involvement in an ongoing civil case where both the victim and defendant
  were parties constituted prosecutorial misconduct; (5) the random
  elimination of two non?designated alternate jurors constituted jury
  tampering; (6) key pieces of evidence were kept from the jury during
  deliberation; (7) the State failed to disclose the PSI report to defendant
  in a timely manner; (8) the State misrepresented and misapplied defendant's
  criminal record during sentencing; (9) no defense was permitted during
  sentencing; and (10) the jury was given an incorrect instruction regarding
  intent and voluntary intoxication.  The record shows that none of these
  claims was preserved during proceedings in the trial court; issues not
  raised during trial cannot subsequently be raised on appeal.  State v.
  Pelican, 160 Vt. 536, 538, 632 A.2d 24, 25-26 (1993). (FN4)  Accordingly,
  we do not consider these arguments, and now turn to the facts of the case.

       ¶  3.  In 1999, defendant purchased the Unique Motel and Gift Shop
  from John McKay under a payment plan where McKay retained the deed until
  defendant paid for the property in full.  The two were close friends until
  a dispute arose regarding defendant's monthly payments.  McKay foreclosed
  on the property, and defendant's family was subsequently evicted from the
  motel.  On November 17, 2002, in the late afternoon, following the
  eviction, defendant visited McKay with the intent to offer him $5000 for
  permission to reside in the motel with defendant's family through the
  holidays.  According to McKay's testimony, he immediately demanded that
  defendant leave his property, and defendant responded by pointing a gun at
  him.  McKay then fled in his plow truck, pursued by defendant in his
  standard transmission Dodge Colt.  Defendant fired four shots in McKay's
  direction, while the two vehicles dodged in and out of traffic, passing
  residences, businesses and the state police barracks.  The chase continued
  for five miles, until McKay pulled into the Brattleboro Police Station,
  followed by defendant, who was arrested by officers on the scene.
   
       ¶  4.  After a jury trial, defendant was convicted of repeatedly
  firing the rifle at McKay while driving his vehicle under the influence of
  alcohol.  Although defendant maintained his innocence throughout the trial,
  defense counsel's main argument was that defendant lacked the capacity to
  form intent due to intoxication and diminished mental state resulting from
  the eviction and his family's financial problems.  Defendant's fiancée,
  whom he has since married, was the defense's only witness.  She testified
  that on November 17, 2002, prior to visiting McKay, defendant was drunk,
  walking in circles and mumbling to himself.  To make its case, the State
  presented McKay's testimony, testimony of two of McKay's tenants who
  claimed to have heard gun shots fired, testimony of the police officers who
  interviewed McKay and arrested defendant, the bolt-action rifle found in
  defendant's car, and four empty shell casings. 

       ¶  5.  After he was convicted, defendant was sentenced by the superior
  court judge to fifteen to twenty-one years to serve on the multiple
  convictions. (FN5)  During the sentencing hearing, the State presented a
  PSI report containing a psychiatric evaluation.  Defendant argued then, and
  reiterates during this appeal, that the evaluation was prepared by a
  non-expert who was not available for cross-examination.  The judge
  initially ruled that it was defense counsel's obligation to subpoena the
  evaluator, but ultimately decided not to rely on the evaluation.  Other
  factors contributing to defendant's twenty-one year sentence included prior
  offenses and that the incident occurred while defendant was subject to a
  court order forbidding any contact with McKay.
                               
       ¶  6.  Defendant first contends that his conviction is against the
  weight of the evidence and the trial judge should have directed a judgment
  of acquittal.  Defendant argued at trial, as he does here, that the conduct
  for which he was convicted was physically impossible.  He asks us, in this
  appeal, to consider whether it is possible for him to fire a bolt-action
  rifle multiple times while driving a standard transmission vehicle, given
  that both tasks require the use of two hands.  Additionally, defendant
  points out that the State's case lacks the plethora of witnesses that one
  would expect when shots are fired on a public road in a prolonged car chase
  during the late afternoon, passing residences, businesses and the state
  police barracks.  

       ¶  7.  The jury was in the best position to determine whether the
  alleged conduct was physically possible and whether the alleged events took
  place.  This Court does not substitute its own findings of fact for those
  of the jury.  See State v. Turner, 2003 VT 73, ¶ 7, 175 Vt. 595, 830 A.2d 122 (mem.) (noting that acquittal is only proper if there is no evidence to
  substantiate a jury verdict); State v. Couture, 169 Vt. 222, 226, 734 A.2d 524, 527 (1999).  We will grant a judgment of acquittal only where no
  reasonable juror could have found defendant guilty beyond a reasonable
  doubt if the evidence is viewed in the light most favorable to the State. 
  Turner, 2003 VT 73, ¶ 7; Couture, 169 Vt. at 226, 734 A.2d  at 527.  We
  cannot conclude that defendant has demonstrated that the charged conduct
  was impossible.  Here, a reasonable juror could have based the conviction
  on the testimony of McKay and other witnesses, as well as circumstantial
  physical evidence.
   
       ¶  8.  In addition to claiming the impossibility of the events for
  which he was convicted, defendant argues that the State did not introduce
  sufficient evidence of his specific intent to harm McKay and that the only
  evidence regarding specific intent was put forth by the defense.  It is
  common, however, that the mental element of an offense must be inferred
  from the defendant's conduct.  See State v. Alexander, 173 Vt. 376, 385,
  795 A.2d 1248, 1255 (2002) (using the same facts to prove kidnapping act
  and intent).  The State's evidence that defendant assaulted McKay is
  sufficient for a jury to infer that the assault was intentional.  Allowing
  the State to use circumstantial evidence to prove intent does not, as
  defendant argues, relieve the State of its burden to prove each element of
  the crime.  See State v. Findlay, 171 Vt. 594, 599, 765 A.2d 483, 489
  (2000) (mem.).  The jury was properly instructed on the State's burden to
  prove beyond a reasonable doubt that defendant specifically intended to
  assault McKay.  The jury considered defendant's claim that due to his
  mental state he could not form specific intent to harm McKay and
  nonetheless chose to convict. 

       ¶  9.  In a related argument, defendant contends that the trial judge
  prevented him from demonstrating his lack of specific intent by limiting
  the scope of his wife's testimony, the only defense witness.  She was not
  permitted to testify that defendant's mother had lost her life savings as a
  result of the dispute between defendant and McKay or that her family was
  homeless and had applied for public assistance.  Defendant also argues that
  the court's evidentiary rulings prevented the witness from describing any
  of the events leading up to the incident on November 17.

       ¶  10.  This issue has changed somewhat between its presentation to
  the trial court and its presentation here.  The evidentiary issues began to
  arise when defense counsel wanted to show that defendant's mother had
  contributed substantial amounts of money and had lost it in the
  foreclosure, and so asked the witness who had made the down payment on the
  motel.  After objection from the prosecution, defense counsel argued that
  the evidence went to defendant's mental state on the day of the incident. 
  The court inquired about the mental state rationale because defendant had
  not given notice of an insanity defense.  The court explained:

    [T]he only defense I've heard about is this diminished capacity,
    which is related to alcohol consumption.  So, his mental state at
    the time of the offense, if it . . . I mean, what are you trying
    to show with his mental state if it's not to show he shouldn't be
    responsible because he was so upset he couldn't form the intent
    which then becomes an insanity defense[?]

  Defense counsel responded that defendant "was so upset that he began
  drinking and he worried about everything, losing everything, his mother
  losing everything, that contributed to the drinking."  The court responded
  that testimony about the mother contributing to the cost of the motel was
  not relevant, but that defense counsel could inquire about the foreclosure. 
  The court added that evidence "that he was upset and started drinking is
  relevant, . . . but not this other information about him being upset to the
  level of not forming an intent to commit the crime."  Defense counsel again
  tried to argue that the receipt of welfare would show why defendant was
  drinking, and the court answered that the reason he was drinking was
  irrelevant and "would serve . . . to prejudice the jury."

       ¶  11.  The witness described defendant as going from a "strong man"
  to a "low man" after three years of battling over the motel.  She described
  in detail defendant's intoxication on the date of the offense and his
  related behavior.  She testified that he was not himself and was
  incoherent.

       ¶  12.  Although we have a broad rule of relevancy, see V.R.E. 401,
  the trial judge has discretion in making a relevancy ruling and will not be
  overturned absent abuse of that discretion.  State v. Larose, 150 Vt. 363,
  371, 554 A.2d 227, 232-33 (1988).  Moreover, relevant evidence can be
  excluded if its probative value is substantially outweighed by the danger
  of unfair prejudice, confusion of the issues or needless presentation of
  cumulative evidence.  V.R.E. 403.  Again, a ruling based on Rule 403 is
  discretionary.  State v. Griswold, 172 Vt. 443, 448, 782 A.2d 1144, 1148
  (2001).
    
       ¶  13.  Defendant argues that the excluded evidence went to whether
  defendant had the intent to commit the crime and was acting under
  diminished capacity, emphasizing that alcohol consumption represented only
  one aspect of defendant's argument that he lacked the requisite intent.  In
  response to the prosecution's objection, however, defense counsel was
  required to make an offer of proof and state the ground on which it was
  admissible.  See V.R.E. 103(a)(2); State v. Ringler, 153 Vt. 375, 378, 571 A.2d 668, 670 (1989).  The offer went solely to defendant's intoxication
  and the diminished capacity defense based on intoxication.  Defense counsel
  did not articulate other factors, not based on intoxication, that he now
  argues in this appeal.  The court allowed defense counsel to elicit from
  the witness the evidence in support of the alcohol-based diminished
  capacity defense.

       ¶  14.  We also emphasize the court's discretion in ensuring the
  evidence was before the jury for a proper purpose.  By the reference to
  prejudicing the jury, the court was apparently concerned that the proffered
  evidence went more to the dispute between defendant and McKay, and sought
  to put defendant in a sympathetic light while creating hostility for McKay. 
  The court had discretion to prevent this misuse of the evidence by limiting
  testimony of marginal relevance that did not undercut the diminished
  capacity defense.  We find no error in the evidentiary rulings.

       ¶  15.  Next, defendant challenges the jury instructions, specifically
  the trial judge's refusal to charge simple assault and reckless
  endangerment as lesser-included offenses.  A criminal defendant is entitled
  to have the jury instructed on every offense that is composed solely of
  some of the same elements as the offense charged and is supported by the
  evidence.  Alexander, 173 Vt. at 382, 795 A.2d  at 1253; State v. Delisle,
  162 Vt. 293, 301, 648 A.2d 632, 637 (1994).  A defendant benefits from such
  an instruction "because it affords the jury a less drastic alternative than
  the choice between conviction of the offense charged and acquittal."  Beck
  v. Alabama, 447 U.S. 625, 633 (1980).  According to defendant, given the
  option to do so, the jury would have chosen to convict him of a lesser
  offense, involving only general intent, because the evidence did not
  support a finding that he had the specific intent to injure McKay.
   
       ¶  16.  Although a criminal defendant is entitled to a charge on
  every lesser-included offense supported by the facts in evidence, simple
  assault and reckless endangerment are not, given these facts,
  lesser-included offenses of aggravated assault.  Defendant was charged with
  aggravated assault under 13 V.S.A. § 1024(a)(2): "A person is guilty of
  aggravated assault if he attempts to cause or purposely or knowingly causes
  bodily injury to another with a deadly weapon."  Defense counsel apparently
  first suggested that simple assault under 13 V.S.A. § 1023(a)(1) should be
  charged as the lesser-included offense.  The language of this subsection
  mirrors the aggravated assault definition without the requirement of deadly
  weapon use.  It is different from a completed assault because the simple
  assault statute contains a lesser mental element than the aggravated
  assault statute.  See State v. Bolio, 159 Vt. 250, 252, 617 A.2d 885, 886
  (1992) (nothing that simple assault includes reckless conduct, whereas
  aggravated assault is an intentional conduct offense).  Because the only
  difference in the offenses involves whether a deadly weapon was used, and
  there is no evidence in this case of an assault without a deadly weapon,
  the trial judge properly held that the jury could not convict defendant of
  simple assault without convicting him of aggravated assault.  In these
  circumstances, the lesser-included offense instruction is inappropriate. 
  See Alexander, 173 Vt. at 383-84, 795 A.2d  at 1254; State v. Mercado, 166
  Vt. 632, 632-33, 699 A.2d 50, 50 (1997) (mem.).
   
       ¶  17.  In response, defense counsel switched to a request that the
  court charge that simple assault under the alternative language of 13
  V.S.A. § 1023(a)(3) was the proper lesser-included offense.  That section 
  reads: "A person is guilty of simple assault if he attempts by physical
  menace to put another in fear of imminent serious bodily injury."  An
  offense is lesser to a greater offense only if it has no elements that are
  not necessary to conviction for the greater offense.  State v. Williams,
  154 Vt. 76, 82, 574 A.2d 1264, 1267 (1990).  Defendant's reliance on the
  alternative elements of the simple assault statute run afoul of this
  language.  Under this alternative, the prosecution must prove that
  defendant attempted to put the victim "in fear of imminent serious bodily
  injury."  The aggravated assault statute does not contain this element. 
  Accordingly, the court properly held that defendant was not entitled to a
  lesser-included offense instruction under this part of the simple assault
  statute.

       ¶  18.  Defendant fares no better in his argument that reckless
  endangerment is a lesser-included offense of aggravated assault.  Although
  under the facts in evidence the State could have charged defendant with
  reckless endangerment, the offense of reckless endangerment is not composed
  of elements from the offense of aggravated assault.  It is defined as
  follows:

    A person who recklessly engages in conduct which places or may
    place another person in danger of death or serious bodily injury
    shall be imprisoned for not more than one year or fined no more
    than $1,000.00 or both.  Recklessness and danger shall be presumed
    where a person knowingly points a firearm at or in the direction
    of another, whether or not the actor believed the firearm to be
    loaded, and whether or not the firearm actually was loaded.

  13 V.S.A. § 1025.  Thus, defendant was not entitled to a lesser-included
  offense instruction on reckless endangerment.
   
       ¶  19.  Defendant has shifted his argument here to the position that
  simple assault and reckless endangerment should have been submitted to the
  jury as lesser-related offenses.  He argues that the issue was preserved
  because, although defense counsel labeled these offenses as
  lesser-included, the issue was fairly presented to the trial court.  In
  making his argument, defendant relies upon State v. Corliss, 168 Vt. 333,
  339, 721 A.2d 438, 443 (1998), where the defendant also argued that we
  should require lesser-related offenses.  Without totally rejecting
  recognition of lesser-related offenses in appropriate cases, we held in
  Corliss that defendant would not be entitled to a lesser-related offense
  instruction on the facts of that case.  168 Vt. at 340, 721 A.2d  at 443. 
  Defendant argues that this case is particularly appropriate for a
  lesser-related offense instruction, as demonstrated by a jury question that
  showed they wanted to convict defendant of only a lesser offense.  We agree
  that if we recognized an obligation to charge lesser-related offenses, this
  case would be an appropriate candidate for such an instruction.  We hold
  that the trial court has no obligation to instruct on lesser offenses that
  are only related to the offense charged by the prosecution.

       ¶  20.  In Corliss, we employed the definition of a lesser-related
  offense from People v. Geiger, 674 P.2d 1303, 1304 (Cal. 1984) (overruled
  by People v. Birks, 960 P.2d 1073 (Cal. 1998)): a lesser-related offense is
  any offense where "the lesser offense is closely related to that charged,
  there is evidence of its commission, and defendant's theory of defense is
  consistent with such a finding." Corliss, 168 Vt. at 339-40, 721 A.2d  at
  443.  We noted in Corliss that only a relatively small number of
  jurisdictions had recognized an obligation to charge lesser-related
  offenses, and the doctrine had been rejected for the federal system by the
  U.S. Supreme Court decision in Schmuck v. United States, 489 U.S. 705, 716
  (1989).  See 168 Vt. at 339 n.4, 721 A.2d  at 443 n.4.  We find the latter
  decision particularly important because it interprets Federal Rule of
  Criminal Procedure 31(c) and we have adopted an identical version of that
  rule as V.R.Cr.P. 31(c).

       ¶  21.  Rule 31(c) provides:

    (c) Conviction of Lesser Offense.  The defendant may be found
    guilty of an offense necessarily included in the offense charged
    or of an attempt to commit either the offense charged or an
    offense necessarily included therein if the attempt is an offense.  

  As we observed above, the rule language is taken verbatim from the federal
  rule and codifies the preexisting law.  See Reporter's Notes, V.R.Cr.P. 31. 
  The rule is interpreted to require a comparison of statutory elements to
  determine whether a lesser offense will be charged, so that any element in
  the lesser offense not contained in the greater offense defeats the
  obligation to instruct the jury on the lesser offense.  See In re Nash, 149
  Vt. 63, 66, 539 A.2d 989, 991 (1987); State v. Bourn, 139 Vt. 14, 15-16,
  421 A.2d 1281, 1282 (1980).  That is exactly the holding of Schmuck, 489 U.S.  at 716-17.

       ¶  22.  That decision adds two policy reasons why the elements
  comparison test is the most appropriate.  First, it enables mutuality of
  access to instructions between the defense and prosecution.  Id. at 718. 
  Since the lesser-related offense has elements outside those charged in the
  information, neither the prosecution nor the court can impose such an
  instruction on the defendant without his or her consent.  Id.  On the other
  hand, if lesser-related offense instructions were available, the defendant
  could insist on such an instruction when it appeared to be tactically
  beneficial and waive any notice defect.  Id. 

       ¶  23.  Second, the elements comparison test is predictable and easy
  to administer, whereas recognition of lesser offenses is neither.  Id. at
  720-21.  This consideration was particularly significant in persuading the
  California court to overrule Geiger unanimously and reject the obligation
  to instruct the jury on lesser-related offenses.  Birks noted that the
  result of Geiger has been that "the courts are cast adrift in a trackless
  sea" because "no clear standards" had emerged to determine when a lesser
  offense is sufficiently related.  Birks, 960 P.2d  at 1087.  Justice Mosk,
  who joined the Geiger opinion, concurred in overruling it because "[w]ith
  the experience of more than a decade, I believe that the rule of Geiger has
  proved to be unworkable."  Id. 
   
       ¶  24.  We recognize defendant's argument that the elements
  comparison test results in a miscarriage of justice where a lesser charge
  exists to fit the scenario, but does not contain exactly the same elements
  as the offense charged.  We also recognize that there are countervailing
  policy considerations, as explained fully in Birks.  Without fully
  resolving the policy arguments, we conclude, however, that in light of the
  clear language of Rule 31(c), and the difficulties in defining when
  lesser-related offense instructions are proper, change of policy in this
  area, if any, should come from rule-making or legislative action.  We
  decline to impose on trial courts any obligation to go beyond the charging
  of lesser-included offenses as determined under the traditional elements
  comparison test.  

       ¶  25.  Defendant next questions the validity of his sentence.  He
  claims that the twenty-one year sentence was based on a PSI report
  containing a psychiatric evaluation conducted by a non-expert who was
  unavailable for cross-examination.  Defendant argued at the sentencing
  hearing that the PSI report should be rejected because the evaluator was
  absent or, alternatively, the hearing should be rescheduled to include the
  evaluator.  The judge denied both requests, ruling that defense counsel was
  responsible for ensuring the presence of the evaluator at the sentencing
  hearing.  Regardless of who should have called the witness, it is
  undisputed that defendant had only a limited opportunity to rebut the
  psychiatric evaluation.  

       ¶  26.  Our rules provide for the disclosure of, and opportunity to
  rebut, information considered at sentencing.  V.R.Cr.P. 32(c)(3), (4). 
  When defendant challenges sentencing information, the court can respond by
  agreeing not to consider the information.  V.R.Cr.P. 32(c)(4).  In such a
  case, the point becomes "moot."  Reporter's Notes to 1989 Amendment,
  V.R.Cr.P. 32; see State v. Rathburn, 140 Vt. 382, 388, 442 A.2d 452, 455
  (1981) (claim that hearsay evidence used for sentencing was invalid based
  on the lack of opportunity for rebuttal is answered where the sentencing
  judge agreed not to rely on the contested material).  Although the trial
  judge ruled that defendant was responsible for not having the evaluator at
  the sentencing hearing, she also indicated that she would not consider the
  evaluation report.  As a result, any error in the court's decision was
  harmless.
   
       ¶  27.  Finally, defendant claims that trial counsel was ineffective
  for failing to: (1) conduct the factual investigation necessary to
  demonstrate that no automobile chase occurred and that no shots were fired;
  (2) subpoena the psychiatric evaluator to be present at the sentencing
  hearing; and (3) preserve meritorious claims for appeal.  This Court is
  not, however, the appropriate forum to determine in the first instance
  whether defendant received ineffective assistance of counsel.  Unless the
  question of effective representation of counsel is raised at trial and
  ruled on by the trial court, defendant must initiate a claim of ineffective
  assistance of counsel by post?conviction relief.  See State v. Lund, 168
  Vt. 102, 105, 718 A.2d 413, 415 (1998); State v. Bacon, 163 Vt. 279,
  296?97, 658 A.2d 54, 66 (1995).  Although defendant raised the issue of
  ineffective assistance of counsel at his sentencing hearing, the court
  never examined or ruled on it because defendant withdrew his claim. 
  Accordingly, any claim of ineffective assistance of counsel must be raised
  in a petition for post-conviction relief, rather than on direct appeal.  

       Affirmed.  



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  Chief Justice Amestoy sat for oral argument but did not participate in
  this decision.

FN2.  His notice of appeal includes the convictions for aggravated assault,
  unlawful trespass, DUI and DLS, but his arguments on appeal go solely to
  the conviction for aggravated assault.  His arguments related to the
  sentence theoretically relate to all components of the aggregate sentence
  for all the offenses.  

FN3.  Some of these issues were raised by counsel for defendant; others by
  defendant in a pro se brief.  The unpreserved arguments that follow in the
  text were all raised in defendant's pro se brief.

FN4.  Although defendant does not request that we do so, we can review
  unpreserved errors for plain error - that is "error so grave and serious
  that it strikes at the very heart of defendant's constitutional rights." 
  Pelican, 160 Vt. at 538, 632 A.2d  at 26 (quoting State v. Hoadley, 147 Vt.
  49, 53, 512 A.2d 879, 881 (1986)).  Our review of defendant's alleged
  errors indicates that if any are errors, they do not rise to the level of
  plain errors.

FN5.  The main part of the sentence was twelve to fifteen years for the
  aggravated assault.  For the DUI and DLS convictions, the court added
  consecutive sentences of one to two years for each offense.  For each of
  the four violation of condition of release convictions, the court added a
  consecutive sentence of three to six months to serve.