State v. Powell

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 40 as well as formal revision before publication in the Vermont Reports.
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                                 No. 89-627



 State of Vermont                             Supreme Court

      v.                                      On Appeal from
                                              District Court of Vermont,
 Peter J. Powell                              Unit No. 1, Rutland Circuit

                                              February Term, 1992



 Francis B. McCaffrey, J.

 Peter R. Neary, Rutland County Deputy State's Attorney, Rutland, for
   plaintiff-appellee

 Robert Katims of Martin & Paolini, Barre, for defendant-appellant



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      GIBSON, J.   Defendant Peter Powell appeals his conviction for assault
 and robbery, 13 V.S.A. { 608(a).  He argues that the district court erred in
 refusing to instruct the jury that, if it had a reasonable doubt on whether
 he was guilty of assault and robbery or one of its lesser-included offenses,
 it must find him guilty only of the lesser offense.  Defendant also argues
 that the court erred in its transitional instruction between the greater and
 lesser offenses.  We affirm.
      The State charged that defendant committed assault and robbery by
 stealing money from the victim while threatening him with a knife.
 Defendant denied the incident.  Alternatively, he presented a diminished-
 capacity defense, arguing he was so impaired at the time that he could not
 form the requisite criminal intent.  This argument was based on defendant's
 claim that he and the victim had drunk heavily and smoked crack cocaine
 during the day, and that he had injected himself in private with a mixture
 of cocaine and heroin.  The State conceded that defendant had been drinking,
 but contested his claim of drug use.  The jury found defendant guilty as
 charged.
                                     I.
      Assault and robbery is committed by one who "assaults another and robs,
 steals, or takes from his person or in his presence money or other property
 which may be the subject of larceny."  13 V.S.A. { 608(a).  The crime con-
 sists of the combined elements of assault and larceny.  See State v.
 Francis, 151 Vt. 296, 307, 561 A.2d 392, 398-99 (1989).  Thus, in the
 present case, the State's burden was to prove that defendant intentionally
 put the victim in fear of imminent, serious bodily injury and intentionally
 deprived him of money, intending to do so permanently.  See id.  The court
 charged that if the State proved that defendant intended only one of these
 results, he would be guilty of simple assault or petit larceny, but not the
 more serious combined offense.
      Defendant requested the court to instruct the jury as follows:
           You are instructed that if the defendant could be con-
           victed of a lesser offense, in case of a reasonable
           doubt between greater or lesser offenses, you must
           convict the defendant of the lesser offense only.  This
           is because common principles of humanity and justice
           create a duty first, to pronounce the defendant innocent
           until proven guilty beyond a reasonable doubt; and,
           secondly, after the defendant is shown to have committed
           an unlawful act, to look for every excuse which may
           reduce the guilt to the lowest point consistent with the
           facts proven.
 The court refused.  Instead, it gave the jury a general instruction on the
 presumption of innocence and the necessity that defendant be convicted only
 on proof beyond a reasonable doubt.  The court explained the elements of
 assault and robbery and the relevance of defendant's intoxication to his
 capacity to form criminal intent.  It instructed the jury to decide whether
 the State had met its burden of proof on each element of assault and
 robbery, and to stop its deliberations if it found defendant guilty.  If the
 jury were to find defendant not guilty of assault and robbery, the court
 charged, it should then consider the lesser-included offenses.  The court
 explained the elements of simple assault, reiterated defendant's
 diminished-capacity claim, and told the jury to decide whether the State had
 met its burden on each element of that offense.  The court repeated this
 procedure in its instruction on petit larceny and reminded the jury not to
 consider the lesser-included offenses unless it found defendant not guilty
 of assault and robbery.
      Defendant argues these instructions violated State v. Duff, 150 Vt.
 329, 554 A.2d 214 (1988).  In Duff, this Court reversed the defendant's
 murder and attempted-murder convictions, finding plain error in the trial
 court's instruction on the lesser-included offense of voluntary
 manslaughter.  The instruction improperly set out the elements of the
 offense and omitted defendant's claim of diminished capacity.  Id. at 333,
 338, 554 A.2d  at 216, 219.
      The Duff Court also found error in two other aspects of the trial
 court's instructions, which are material herein.  First, the trial court
 refused to instruct the jury that if it found beyond a reasonable doubt that
 the defendant was guilty of homicide, the crime was presumed to be of the
 lesser degree, i.e., manslaughter, unless the jury was convinced beyond a
 reasonable doubt that the crime was committed with malice.  This Court
 rejected the trial court's ruling that there was no presumption between
 greater and lesser-included offenses, and adopted the following rule:
           "If the defendant could be convicted of a lesser
           offense, the jury should be instructed that in case of a
           reasonable doubt between the degrees or offenses, it may
           convict of the lesser only; a general instruction that
           the defendant's guilt must be established beyond a
           reasonable doubt is not sufficient."
 Id. at 335, 554 A.2d  at 217 (quoting 4 Wharton's Criminal Procedure { 545,
 at 32 (12th ed. 1976)).
      Second, the Duff Court found error in the trial court's transitional
 charge, which instructed the jury to consider murder and its lesser-included
 homicide offenses in descending order of severity.  The trial court instruc-
 ted the jury to move on to the lesser offenses only if it had a reasonable
 doubt as to the elements of the greater.  We noted that "[s]uch an instruc-
 tion in effect mandates the jury to reach a decision with respect to the
 offense charged before considering a lesser-included offense," and presents
 "a serious due process issue" because it may prevent the jury from con-
 sidering the lesser-included offenses.  Id. at 335-36, 554 A.2d  at 218.  The
 Court concluded that trial courts should give the "less rigorous" tran-
 sitional instruction, which allows the jury to move on to lesser-included
 offenses if it is unable after "all reasonable efforts" to reach a verdict
 on the greater offense, unless the defendant requests the "more rigorous"
 charge.  Id. at 336, 554 A.2d  at 218.  The Court noted that each instruction
 has advantages and disadvantages for the defendant: under the more rigorous
 charge the jury either will convict of the more serious offense or will find
 the defendant not guilty of any offense; under the less rigorous charge, the
 jury is more likely to convict the defendant, but of a lesser offense.  Id.
      Defendant argues that Duff required the court to give the less rigorous
 charge unless he requested otherwise.  Defendant concedes, however, that he
 made no objection at trial; thus we need look only for plain error.  The
 Duff Court concluded that use of an improper transitional charge would not
 in itself constitute plain error.  150 Vt. at 338, 554 A.2d  at 219.  We see
 no reason to depart from this holding.  Ordinarily, that would dispose of
 the issue, but because we perceive a need to clarify the holding in Duff,
 we shall consider defendant's argument on its merits.
      In Duff, we concluded that a trial court should give the less rigorous
 transitional charge unless the defendant requests the more rigorous charge.
 The Duff Court relied on the rule set forth in United States v. Tsanas, 572 F.2d 340, 346 (2d Cir. 1978), stating, "We now adopt it as our rule."  Duff,
 150 Vt. at 337, 554 A.2d  at 218.  The Tsanas rule, however, allows the trial
 court to give either the more or the less rigorous charge, unless the
 defendant requests one or the other.  Tsanas, 572 F.2d  at 346.  The Tsanas
 court reasoned that neither charge was "wrong as a matter of law.  The court
 may give the one that it prefers if the defendant expresses no choice.  If
 he does, the court should give the form of instruction which the defendant
 seasonably elects."  Id.  Tsanas allowed the defendant to choose the one he
 preferred because "[i]t is his liberty that is at stake, and the worst that
 can happen to the Government under the less rigorous instruction is his
 readier conviction for a lesser rather than a greater crime."  Id.
      The trial court herein gave the more rigorous charge, explicitly
 instructing the jury not to consider the lesser-included offenses unless it
 found defendant not guilty of assault and robbery.  Inasmuch as defendant
 claimed that the assault and robbery never occurred, he has not shown that
 he was prejudiced by the instruction.  He could have requested the less
 rigorous instruction at the charge conference or objected to the more
 rigorous charge when it was given.  Instead, he apparently made a tactical
 decision to seek outright acquittal, and he cannot now claim error based on
 this decision.  Cf. State v. Grenier, No. 90-313, slip op. at 5 (Vt. Feb.
 28, 1992) (defendant could not claim error where court gave his requested
 lesser-included-offense instruction, and he was convicted of the lesser
 offense).  To the extent that Duff requires a trial court to give the less
 rigorous charge in the absence of any request by the defendant, it is
 overruled.
                                     II.
      Defendant also argues that Duff required the trial court to instruct
 the jury to find him guilty only of simple assault or petit larceny if it
 had a reasonable doubt as to whether he was guilty of assault and robbery or
 a lesser-included offense.  See Duff, 150 Vt. at 335, 554 A.2d  at 217.
 Defendant preserved this claim of error, but we conclude that it does not
 provide grounds for reversal herein.
      The rule requiring defendant's requested instruction on reasonable
 doubt between offenses has a long history, but the cases cited to support it
 in the authorities relied upon by defendant show that it has rarely led to
 reversal.  See cases cited in Duff, 150 Vt. at 335, 554 A.2d  at 217; 4
 Wharton's Criminal Procedure { 545, at 32 n. 87; but cf. People v. Dewberry,
 51 Cal. 2d 548, 556-57, 334 P.2d 852, 856 (1959) (failure to give
 instruction on reasonable doubt between second-degree murder and mans-
 laughter held reversible error).  Nor is the instruction strictly logical.
 A jury cannot convict a defendant of any offense if it has a reasonable
 doubt as to his guilt.  Thus, to say that the jury must convict of a lesser-
 included offense if it has a reasonable doubt as to whether the defendant is
 guilty of a greater offense is redundant; if the jury is in doubt about the
 greater offense, it simply cannot convict of that offense.  In effect, the
 benefit-of-the-doubt instruction tells the jury to "take a second look" once
 it has decided to convict of the greater of two offenses.
      The "reasonable doubt between offenses" instruction reflects concern
 that a general instruction on reasonable doubt is not adequate to preserve
 the presumption of innocence when the jury must consider multiple offenses
 or degrees of an offense.  In the instant case, however, that concern is not
 well founded.  The court initially instructed the jury that the presumption
 of innocence prevails throughout the trial.  In addition, the court repeated
 that the State had to prove each element of each offense beyond a reasonable
 doubt when it instructed on assault and robbery and on the two lesser-
 included offenses.  The charge thus provided far more than a general
 instruction on reasonable doubt, and we conclude that the charge could not
 have led the jury to convict defendant of assault and robbery for any reason
 except that it was convinced beyond a reasonable doubt that he was guilty as
 charged.  See Benavides v. State, 763 S.W.2d 587, 589 (Tex. Crim. App. 1988)
 (no uncertainty on how to resolve doubt in similar charge on aggravated
 assault and lesser-included offense, robbery).  As long as a court
 specifically instructs the jury as to each offense charged that it must not
 convict unless it is convinced of the defendant's guilt beyond a reasonable
 doubt, the "reasonable doubt between offenses" instruction is not required.
 To this extent, too, Duff is overruled.
      Affirmed.


                                         FOR THE COURT:



                                         _________________________________
                                         Associate Justice