Introduction

In State v. Diaz, the Vermont Supreme Court affirmed a conviction for assault and robbery under 13 V.S.A. § 608(a), addressing two central appellate challenges: (1) whether the evidence was sufficient to support the jury’s verdict and (2) whether the guilty verdict on assault and robbery was inconsistent with acquittals on two weapon-related charges. The case arose from a street encounter in which a 15-year-old complainant, seeing the defendant sprinting at him and believing he had a knife concealed in his sleeve, fled in fear, dropping a backpack and electronics. The defendant then smashed some items and walked off with others. A jury acquitted the defendant of aggravated assault with a deadly weapon and carrying a dangerous weapon while committing a felony, but convicted him of unlawful mischief, larceny from the person, and assault and robbery. The trial court dismissed grand larceny for lack of proof of value. On appeal, the Court upheld the assault-and-robbery conviction.

Diaz is significant for two clarifications in Vermont robbery law: (a) the court underscores that a prosecutor’s factual theory (e.g., “with a knife”) contained within jury instructions does not transform that theory into an additional element requiring proof; and (b) the “presence” component of robbery may be satisfied where a victim surrenders property due to fear, even if the property is later taken when the victim has retreated from the immediate vicinity. The opinion also reaffirms that inconsistent verdicts do not automatically undermine a valid conviction.

Summary of the Opinion

• Weapon possession is not an element of assault and robbery under 13 V.S.A. § 608(a); the State need not prove the defendant actually had a dangerous weapon. The Court cites and follows State v. Bockus, 2024 VT 4.
• Jury instructions that recount the State’s factual theory (e.g., that the defendant ran “with a knife”) do not convert that theory into an element, especially where the court distinguished between elements and acts and instructed the jury to find the elements, not every factual allegation. No plain error occurred.
• Sufficient evidence supported the elements of assault and robbery:
  • Physical menace: sprinting at the complainant while appearing to have a weapon is a threatening act that could reasonably place the complainant in fear of imminent serious bodily injury.
  • Intent: intent to instill fear may be inferred circumstantially from the defendant’s pursuit and subsequent destruction of property.
  • Taking “from the presence”: the complainant had possession and control of his belongings and dropped them due to fear; he could have retained them but for the fear. This satisfies “presence.”
  • Temporal unity: the assault and taking formed one continuous transaction, permitting the jury to infer that the elements coincided.
• The assault-and-robbery conviction was not inconsistent with acquittals on aggravated assault with a deadly weapon and carrying a dangerous weapon during a felony because the offenses require different elements. Even if inconsistency existed, Vermont law allows inconsistent verdicts to stand.
• Practice note: the Court observes that the State should have asked the trial court to avoid theory-specific language that could be misconstrued as an element—a drafting caution for future jury instructions.

Analysis

Precedents and Authorities Cited

• Standards of review for sufficiency and judgment of acquittal: State v. McMahon, 2024 VT 67; State v. Perez, 2006 VT 53; State v. Davis, 2018 VT 33; State v. Hale, 2021 VT 18. The Court looked to whether the evidence, viewed in the light most favorable to the State, reasonably supports conviction beyond a reasonable doubt, without substituting appellate judgment for the jury’s.
• Preservation and plain error: State v. Gurung, 2025 VT 52 (forfeiture by failing to raise issue below); State v. Herrick, 2011 VT 94 (four-prong plain error test).
• Assault and robbery statute: 13 V.S.A. § 608(a) (no weapon element on the face of the statute).
• No weapon requirement for § 608: State v. Bockus, 2024 VT 4, ¶ 27 (State need not prove the defendant was “actually armed” to convict of assault and robbery).
• Elements vs. theory in jury instructions: State v. Albarelli, 2011 VT 24 (contrast where the trial court narrowed the offense itself to a particular modality—“threatening behavior”—thereby limiting the charge; Diaz distinguishes this and holds that reciting the State’s theory did not narrow elements).
• Proof of elements vs. proof of every factual allegation: State v. Caballero, 2022 VT 25, ¶ 25 (State must prove elements beyond a reasonable doubt, not each asserted fact).
• Inferring intent from circumstantial evidence: State v. Cole, 150 Vt. 453; State v. Murphy, 128 Vt. 288; constraints against speculation: State v. Jones, 2019 VT 3.
• “Presence” in robbery: State v. Deso, 110 Vt. 1 (property is in one’s presence if within reach, inspection, observation, or control such that, absent fear or violence, possession could be retained). The Court also found persuasive out-of-state authority: State v. Skillings, 97 A.2d 202 (N.H. 1953); Commonwealth v. Homer, 127 N.E. 517 (Mass. 1920); State v. Calhoun, 34 N.W. 194 (Iowa 1887).
• Presumption juries follow instructions: State v. McCarthy, 2012 VT 34.
• Continuous criminal transaction: State v. Peatman, 2018 VT 28; State v. Gilman, 158 Vt. 210.
• Inconsistent verdicts doctrine: State v. Carpenter, 155 Vt. 59 (logical consistency not required; inconsistent verdicts may stand); distinguishing State v. Crepeault, 167 Vt. 209 (reversing where the count of conviction was not independent but predicated on acquittals).

Legal Reasoning

1. Elements vs. The State’s Theory in Jury Instructions
   The defense contended on appeal that, because the trial court’s instruction paraphrased the State’s theory—“running towards him with a knife”—the State was required to prove actual knife possession to satisfy “physical menace.” That contention was unpreserved and reviewed for plain error. The Court found no error: the instructions defined the element broadly as “physical menace” (a threat by word or act to inflict physical injury) and, separately, described the State’s factual theory as one way to meet the element. The court explicitly distinguished between elements and acts and told jurors the State need not prove each act. Under Albarelli, narrowing happens when a court limits the legal definition of the offense itself; here, the court did not do so. Thus, the “knife” reference did not morph into an element. This dovetails with Bockus: § 608 does not require a weapon.
2. Sufficiency: Physical Menace and Intent
   Viewing the evidence favorably to the State, the complainant saw the defendant sprinting at him at close range, appearing to conceal a knife in his sleeve, while no one else was present. The complainant fled and abandoned property due to fear. The defendant pursued and destroyed property before taking other items. From these facts, a jury could reasonably find a threatening act (physical menace) and infer intent to cause fear. Vermont law permits intent to be inferred from conduct and its context, so long as the inference is grounded in evidence, not speculation. The defendant’s argument that he would have brandished a knife if he had one was rejected as insufficient to displace reasonable inferences from the totality of conduct.
3. “From the Presence”: Presence-by-Surrender
   The defense argued there was no taking “from the presence” because the complainant had retreated indoors and the defendant later picked up the items outside. The Court relied on Deso’s control-based definition: property is in one’s presence if within their reach, observation, or control such that, but for fear or violence, the person could have retained possession. Because the complainant had actual possession moments earlier and relinquished the property solely due to fear induced by the defendant’s conduct, the jury could find the taking occurred from the complainant’s presence. The Court found persuasive non-Vermont decisions treating property as within the victim’s presence when fear or violence compels surrender, even if not in immediate physical proximity at the moment of the taking. This opinion thus articulates a clear Vermont application of a “presence-by-surrender” theory consistent with Deso.
4. Temporal Coincidence and Continuous Transaction
   The defendant further contended that even if an assault occurred, the taking was temporally separated, so the elements did not coincide “at the same time.” Reviewing for plain error, the Court held a rational jury could view the series of acts—threatening approach, the complainant’s flight in fear, destruction of property, and taking—as “inextricably intertwined,” constituting a continuous offense. Under Peatman and Gilman, close-in-time acts forming a single criminal episode may be treated as one offense; the jury could infer the requisite intent to assault and rob from the course of conduct.
5. Inconsistent Verdicts
   The conviction for assault and robbery was not legally inconsistent with acquittals on aggravated assault with a deadly weapon and carrying a dangerous weapon during a felony. Those charges require proof of weapon-related elements that § 608 does not. The Court analogized to Bockus, where acquittal on a weapon-enhanced robbery count coexisted with conviction on a non-weapon robbery count. The Court also reiterated Vermont’s long-standing rule: even if verdicts seem logically inconsistent, they may stand unless the count of conviction is not an independent offense (Crepeault’s predicate-offense scenario). Diaz’s § 608 conviction was an independent offense with distinct elements.
6. Practice Pointer on Instructions
   The Court noted that, given the State’s position in closing that a weapon was not required for § 608, the State “should have objected” to any instruction phrased in a way that might suggest the knife was required. This is a caution for prosecutors and trial judges to avoid embedding theory-specific facts within element definitions, which can invite needless appellate disputes.

Impact and Significance

• Elements-vs.-Theory Clarity: Diaz reinforces that juries decide whether elements are proved; they need not find every fact the State uses to illustrate its theory. Trial courts should carefully demarcate elements from illustrative facts in instructions, and parties should object to any phrasing that risks conflating the two.
• Weapon Not Required for § 608: Following Bockus, Diaz confirms that actual possession of a weapon is not necessary to prove assault and robbery; threatening conduct alone can suffice to establish “physical menace.”
• Expanded Understanding of “Presence” in Robbery: The opinion provides a Vermont-grounded application of the presence element where the victim relinquishes property due to fear and the defendant immediately capitalizes on that fear. This “presence-by-surrender” analysis will be influential in cases involving chase-and-drop scenarios, street encounters, or flight-induced relinquishment.
• Continuous-Transaction Reasoning: Prosecutors can frame closely linked assaultive conduct and subsequent taking as one continuous offense. Defenders should focus on breaking the chain—e.g., significant temporal or spatial gaps, intervening circumstances, or evidence that fear did not cause the surrender.
• Inconsistent Verdicts Doctrine Reaffirmed: Defendants cannot rely solely on apparent inconsistencies across counts to vacate a conviction where the count of conviction stands on its own elements and sufficient evidence supports it.
• Charging and Instruction Strategy: Practically, Diaz encourages charging both the base § 608 offense and any weapon-enhanced counts where appropriate, while ensuring instructions do not suggest a weapon is required for § 608. Defense counsel should preserve instruction-based objections by explicitly distinguishing elements from State theories at trial.

Complex Concepts Simplified

• Assault and Robbery (13 V.S.A. § 608(a)): The crime has two parts: an assault (attempting to put someone in fear of imminent serious bodily injury by words or acts) and a taking (robbing, stealing, or taking property from the person or their presence). No weapon is required.
• Physical Menace: Conduct (words or actions) that threatens physical injury. It can be established by nonverbal acts, such as sprinting toward a victim in a way that reasonably conveys imminent harm.
• “From the Presence”: Property is taken “from the presence” if it is within the victim’s control such that, absent violence or fear, the victim could have retained it. If fear causes the victim to surrender or drop the property, a subsequent taking may still be “from the presence.”
• Continuous Offense / Continuous Transaction: When related criminal acts occur in close sequence as part of a single episode, a jury can view them as one continuous offense, allowing inferences about intent and temporal overlap of elements.
• Inconsistent Verdicts: Juries can acquit on one count and convict on another even if the outcomes appear logically inconsistent; this generally does not invalidate the conviction unless the convicted count legally depends on the acquitted count.
• Plain Error Review: If a party fails to raise an issue at trial, appellate courts will correct only obvious errors that affect substantial rights and seriously impact the fairness or integrity of proceedings.
• Elements vs. Theory in Jury Instructions: Elements are the legally required parts of a crime that must be proved beyond a reasonable doubt. The State’s factual theory (how it says those elements were met) is not itself an element and need not be proved in every detail.

Conclusion

State v. Diaz fortifies Vermont’s assault-and-robbery jurisprudence in two salient ways. First, it confirms—consistent with Bockus—that § 608 does not require proof of a weapon, and that jury instructions should not be read to add elements merely because they recite the State’s factual theory. Second, it provides a clear, Vermont-based application of the “presence” element where fear compels the victim’s surrender of property; the taking remains “from the presence” so long as the victim could have retained possession absent fear or violence.

The Court’s sufficiency analysis illustrates how threatening conduct and subsequent acts (like property destruction) may collectively support inferences of physical menace and intent. Its continuous-transaction reasoning offers a practical framework for viewing assault and taking as a unified offense when the facts are inextricably intertwined. Finally, by rejecting the inconsistent-verdicts challenge and reminding trial participants to maintain the elements/theory distinction in instructions, Diaz provides durable guidance to Vermont courts, prosecutors, and defense counsel alike.

Key takeaway: In Vermont, assault and robbery under § 608 can be proved without a weapon; threatening conduct suffices for “physical menace,” and a taking may be “from the presence” when the victim relinquishes property due to fear. Jury instructions should carefully separate legal elements from factual theories to avoid confusion, and inconsistent verdicts will not, standing alone, undo a valid conviction supported by sufficient evidence.