State v. Burket: Refining Plain-Error Review of Jury Instructions and Narrowing Drug-Testing Conditions in Vermont Probation Law

1. Introduction

In State v. Kelly Burket, 2025 VT ___ (Aug. 8, 2025), the Vermont Supreme Court addressed two recurring criminal-procedure questions:

Whether the omission of “to wit: pepper spraying” from a jury instruction constituted plain error.
The permissible scope of probation conditions—specifically, rapid-reporting requirements, home-visit provisions, and drug-testing mandates—when the underlying offense bears no relation to substance abuse.

The decision both clarifies the boundary for finding “plain error” in jury charges and sets a new limitation on imposing urinalysis conditions absent offense- or history-specific justification.

Background Facts

• Incident: In May 2023, a parking dispute outside a Burlington paint store escalated when Kelly Burket sprayed the complainant with pepper spray.
• Charge: Simple assault under 13 V.S.A. § 1023(a)(1).
• Defense: Self-defense. Burket claimed the complainant threatened him.
• Verdict & Sentence: Jury found Burket guilty. He received 10 days–3 months (all suspended) and one year of probation.

2. Summary of the Judgment

The Supreme Court (Reiber, C.J., Eaton & Waples, JJ.) affirmed the conviction and most probation conditions but struck the phrase “or urinalyses” from a counseling-release condition. Key holdings:

No Plain Error: The trial court’s failure to repeat the “to wit” language in the element description did not mislead the jury or lessen the State’s burden.
Probation Conditions B, C, D Upheld: 24-hour address reporting, 72-hour citation reporting, and home-visit authority are reasonably related to supervision and public safety.
Condition 14 Narrowed: Drug-testing (urinalysis) may not be imposed where the record shows no nexus to substance abuse; the phrase was therefore excised.

3. Analysis

3.1 Precedents Cited and Their Influence

State v. Kolibas, 2012 VT 37 – Establishes that when an information specifies a particular act, the State must prove that act. The Court distinguished Kolibas, noting that the jury charge as a whole still required proof that Burket pepper-sprayed the victim.
State v. Nicholas, 2016 VT 92 – Provides the four-part plain-error test. Applied to show no “obvious error” or prejudice.
State v. Gokey, 136 Vt. 33 (1978) – Classic articulation that a charge is viewed “as a whole.” Supported the conclusion that the jury was properly instructed.
State v. Putnam, 2015 VT 113; State v. Moses, 159 Vt. 294 (1992) – Confirm broad trial-court discretion over probation conditions; burden on appellant to show abuse.
State v. Levitt, 2016 VT 60 – Upheld home-visit condition against search-and-seizure challenge; dispositive of Burket’s lateraised constitutional argument.
State v. Nash, 2019 VT 73 – Struck random-urinalysis condition lacking nexus to offense; directly analogized to cut the urinalysis language here.

3.2 Court’s Legal Reasoning

3.2.1 Plain-Error Review of Jury Instructions

Applying Nicholas, the Court required the error to be “obvious,” “affect substantial rights,” and “seriously affect fairness.” The instruction:

“…caused bodily injury to [the complainant] by pepper spraying him…”

even without “to wit,” sufficiently tethered causation to pepper spray. No evidence suggested any alternative mechanism of harm. Therefore, no reasonable jury would misapprehend the State’s burden.

3.2.2 Probation-Condition Discretion

Under 28 V.S.A. § 252(a), conditions must be “reasonably necessary” to ensure a law-abiding life. The trial court articulated public-safety supervision concerns given Burket’s “bizarre” behavior and expressed willingness to repeat it. The Supreme Court found:

Rapid-reporting (B & C): Timeframes (24/72 hrs) not unduly onerous and help DOC track defendant.
Home Visit (D): Statutorily authorized (§ 252(b)(10)) and foreclosed constitutional objections via Levitt.
Urinalysis (14): Failed the Nash nexus test—no drug involvement, no history—so it was severed.

3.3 Potential Impact of the Judgment

Jury-Instruction Drafting: The opinion reassures trial judges that minor stylistic omissions are tolerable as long as the charge, viewed holistically, accurately conveys every element.
Probation Conditions: Reinforces that Vermont courts must articulate a record-based rationale for intrusive conditions like drug testing. The State’s concession and the Court’s willingness to strike only the offending clause create a model for “surgical” modification rather than wholesale invalidation.
Administrative Convenience vs. Individual Rights: Confirms that conditions advancing supervision (e.g., address updates, home visits) remain valid when grounded in public-safety concerns—even where the offense is non-violent or low-level.

4. Complex Concepts Simplified

Plain Error: A mistake so clear and prejudicial that an appellate court can correct it even when the lawyer did not object at trial. Requires showing the error is “obvious” and undermined the proceeding’s fairness.
Probation Condition Nexus: A requirement that a condition relate to either the crime, the defendant’s history, or rehabilitation goals. A “nexus” prevents arbitrary or irrelevant restrictions.
Home-Visit Condition vs. Search: Unlike a warrantless search, a scheduled probation visit is considered an administrative tool; Vermont precedent treats it as categorically reasonable.
Urinalysis: Mandatory drug testing through urine samples. Constitutionally permissible only when linked to drug-related conduct, prior abuse, or treatment needs.

5. Conclusion

State v. Burket crystallizes two doctrinal points in Vermont law:

Minor editorial lapses in jury instructions will not constitute plain error when the charge, evidence, and arguments focus the jury on a single, undisputed means of committing the offense.
Probation conditions—particularly those impinging on bodily privacy like drug testing—must be tailored. Without a factual foundation connecting the defendant to substance misuse, such conditions are vulnerable to appellate excision.

Practitioners should cite Burket when challenging boiler-plate urinalysis provisions or defending facially adequate yet slightly imperfect jury instructions. The decision balances supervisory needs with individual liberty, further refining Vermont’s probation jurisprudence and plain-error doctrine.