State of Vermont v. Justin R. Kuzawski

In 2015, defendant was living with his girlfriend. His girlfriend had a six-year-old

daughter, E.P., from a prior relationship. E.P. lived primarily with her father, but spent one night

a week at the home shared by her mother and defendant. On one of those evenings, defendant was

cutting boxes with a box cutter. The box cutter defendant was using was not a typical box cutter;

unlike most box cutters, the sharp blade at the cutting end of the tool was covered with a sheath of

hard plastic. The blade was exposed on the sides of the tool, though this cutting edge was less

than half an inch long and the plastic guard on the top extended down the sides and past the cutting

2

edge by approximately a centimeter. Because of the guard, the tool had a much smaller cutting

edge than a typical box cutter. While defendant was using this tool to work with boxes, six-year

old E.P. approached him and asked what he was doing. Defendant initially told her “[n]othing,

none of your business.” E.P. persisted, and defendant then held the box cutter he was using next

to E.P.’s stomach and told her that he would kill her in her sleep. He then laughed, and E.P. ran

away.

¶ 3. The next day, E.P. told her father’s sister about this incident. She said that she had

not slept well the night before and that when she woke up she checked to make sure that another

child also spending the night at the house was still alive, since E.P. herself was still alive. E.P.’s

aunt contacted both E.P.’s father and the police.

¶ 4. After the police questioned defendant, the State charged him with two counts of

first degree aggravated domestic assault pursuant to 13 V.S.A. § 1043(a)(2) and § 1043(a)(3). The

first of these charges alleged that defendant “was armed with a deadly weapon and threatened to

use the deadly weapon on a family or household member.” See id. § 1043(a)(2) (“A person

commits the crime of first degree aggravated domestic assault if the person . . . is armed with a

deadly weapon and threatens to use the deadly weapon on a family or household member . . . .”).

The second charge alleged that defendant “wilfully caused a family or household member to fear

imminent serious bodily injury and has previously been convicted of aggravated domestic assault.”

See id. § 1043(a)(3) (“A person commits the crime of first degree aggravated domestic assault if

the person . . . commits the crime of domestic assault and has been previously convicted of

aggravated domestic assault.”); see also id. § 1042 (providing that domestic assault occurs when

person “wilfully causes a family or household member to fear imminent serious bodily injury”).

The State also charged defendant with one count of cruelty to a child, alleging that he had “wilfully

assaulted, ill treated, neglected or abandoned or exposed the child, or caused or procured the child

to be assaulted, ill treated, neglected, abandoned or exposed, in a manner to cause the child

unnecessary suffering, or to endanger the child’s health.” Id. § 1304.

3

¶ 5. Following a bench trial, but before returning a verdict, the trial court noted that the

State should have elected one of the two offenses charged under 13 V.S.A. § 1043. The State

deferred to the court, which dismissed the charge under § 1043(a)(3). The court then found

defendant guilty of first degree aggravated domestic assault pursuant to § 1043(a)(2) and not guilty

of cruelty to a child pursuant to 13 V.S.A. § 1304. This appeal followed.

¶ 6. Defendant raises two arguments related to the sufficiency of the State’s evidence.

First, he argues that the State did not present evidence to support the court’s conclusion that the

box cutter used in the incident described above was a deadly weapon. And second, he argues that

the State did not present evidence to support the court’s conclusion that he had the specific intent

to threaten that is necessary for a conviction of first degree aggravated domestic assault. We

address each of these arguments in turn.

¶ 7. When we consider a challenge to the sufficiency of the evidence, we “must

determine if the evidence, viewed in the light most favorable to the State and excluding modifying

evidence, fairly and reasonably supports a finding beyond a reasonable doubt.” State v. Vargas,

2009 VT 31, ¶ 18, 185 Vt. 629, 971 A.2d 665 (mem.) (quotation omitted). We review the trial

court’s determinations on matters of law de novo, including the court’s interpretation of a statute.

State v. Amsden, 2013 VT 51, ¶ 8, 194 Vt. 128, 75 A.3d 612. We review the court’s findings of

fact “under a clear-error standard.” Id.

¶ 8. A deadly weapon is “any firearm, or other weapon, device, instrument, material, or

substance, whether animate or inanimate which in the manner it is used or is intended to be used

is known to be capable of producing death or serious bodily injury.” 13 V.S.A. § 1021(a)(3).

Serious bodily injury is injury that creates “a substantial risk of death; . . . a substantial loss or

impairment of the function of any bodily member or organ; . . . a substantial impairment of health;

or . . . substantial disfigurement.” Id. § 1021(a)(2)(A). Defendant argues that this statutory

definition lists two discrete categories of deadly weapon: (1) .items specifically designed to injure,

or per se deadly weapons—those objects that are designed to be used to produce death or serious

4

bodily injury, such as a loaded firearm; and (2) objects that can be called deadly weapons only if

the actor actually uses them in a manner that can produce death or serious bodily injury—such as

a pillow used to suffocate a victim. Defendant argues that the box cutter he held to E.P.’s stomach

falls into neither of these categories. It is not an item intended to be used to injure because it is

designed to cut boxes, and thus it is not a per se deadly weapon. Nor is it an item that, in this case,

was actually used in a manner that could produce death or serious bodily injury because defendant

held it to E.P.’s stomach, but he did not physically harm her.

¶ 9. This reading of the statute is borne out in neither the statute’s plain language nor

our caselaw. When this Court considers the meaning of a statute, we begin with its plain language.

State v. Kimmick, 2007 VT 45, ¶ 12, 181 Vt. 635, 928 A.2d 489 (mem.). If the language of the

statute is clear, “we are bound to follow it.” Id. (quotation omitted). Here, the statute provides

that an object can be labelled a deadly weapon if that object “in the manner it is used or is intended

to be used is known to be capable of producing death or serious bodily injury.” 13 V.S.A.

§ 1021(a)(3). Defendant’s reading of § 1021(a)(3) seems to suggest that the phrase “is used or is

intended to be used” modifies the list of objects included at the beginning of the provision. Thus,

according to defendant’s interpretation, an object is a per se deadly weapon when that object is

designed or “intended to be used” to cause death or serious bodily injury. Following this reasoning,

because a loaded firearm has no purpose other than to cause death or serious bodily injury, it is a

per se deadly weapon and as a matter of law would satisfy the statutory definition. An object may

be found to be a deadly weapon, even if it is not a per se deadly weapon “intended to be used” to

cause death or serious bodily injury, if it “is used” to cause death or bodily injury. Thus, a box

cutter, not specifically designed to injure but used to cut deeply enough to cause death or serious

bodily injury, would be a deadly weapon because of the way it “is used,” while a box cutter held

to a stomach but not used to cut cannot be found a deadly weapon because its “use” causes no

bodily injury.

5

¶ 10. We read the phrase “is used or is intended to be used” to modify the word “manner.”

That is, “any firearm, or other weapon, device, instrument, material or substance, whether animate

or inanimate” falls within the statutory definition of “deadly weapon” when, during the incident

giving rise to a charged offense, the object “is used or is intended to be used” in a “manner” to

cause either death or serious bodily injury. See also Benson v. Muscari, 172 Vt. 1, 9, 769 A.2d

1291, 1298 (2001) (noting deadly weapons definitions are “unhelpful to defining a [probationer’s

deadly weapons] possession prohibition . . . because they depend upon the use or intended use of

the weapon, which cannot be determined from possession alone” (emphasis added)). Whether an

object is a deadly weapon is tied to the way that an object is used or is intended to be used in the

commission of a crime—whether the object is a loaded firearm or a pillow. Whether an object is

a deadly weapon is not tied to the object’s intrinsic use or purpose—as an object intended to be

used to injure or an object intended for some other purpose—but only to the way the object “is

used” or “is intended to be used” in the particular incident giving rise to a charge.

¶ 11. Continuing our consideration of the statutory language, just as we ground our

analysis in the plain language of a statute, we also read statutes connected “as part of one system”

in concert with one another. Bd. of Trs. of Kellogg-Hubbard Library, Inc. v. Labor Relations Bd.,

162 Vt. 571, 574, 649 A.2d 784, 786 (1994); see In re Preseault, 130 Vt. 343, 346, 292 A.2d 832,

834 (1972) (“Statutes in pari materia are to be construed with reference to each other as parts of

one system.”). Reading the definition of deadly weapons with this perspective in mind, it is clear

that the two phrases, “is used” and “is intended to be used,” are addressed to two distinct kinds of

offenses, namely completed crimes and attempted crimes.

¶ 12. Section 1021 is the definitions section for Subchapter 4 of Chapter 19 of Title 13,

which addresses disturbances of the peace. These definitions also extend to the offenses in

Subchapter 6 of the same chapter and title, which addresses domestic assaults including first degree

aggravated domestic assault. Several of these statutes include not just provisions penalizing a

completed act, such as an assault, but also an attempt to commit an act. See, e.g., 13 V.S.A.

6

§ 1023(a)(3) (“A person is guilty of simple assault if he or she . . . attempts by physical menace to

put another in fear of imminent serious bodily injury.”); id. § 1024(a)(2) (“A person is guilty of

aggravated assault if the person . . . attempts to cause . . . bodily injury to another with a deadly

weapon . . . .”); id. § 1043(a)(2) (“A person commits the crime of first degree aggravated domestic

assault if the person . . . attempts to use . . . a deadly weapon and threatens to use the deadly

weapon on a family or household member . . . .”). The phrase “is intended to be used” in the

definition of a deadly weapon is directed at the definition’s applicability in these “attempt”

offenses, while the phrase “is used” is directed at the definition’s applicability to completed crimes.

¶ 13. Applying the statute without the “is intended to be used” clause would lead to an

absurd result. Craw v. Dist. Court, 150 Vt. 114, 119, 549 A.2d 1065, 1069 (1988) (“A presumption

obtains against a construction that would lead to absurd results.”). Because an object is included

within the category of deadly weapons when the object is used to cause death or serious bodily

injury, without the alternate “intended to be used” definition, it would be impossible to prosecute

an attempt to commit, for example, assault under 13 V.S.A. § 1024(a)(2) because the actor would

not actually use an object in a way that could cause death or serious bodily injury but would merely

attempt to use the object in such a way. Considering an object “intended to be used” to cause death

or serious bodily injury a deadly weapon enables the necessary breadth to penalize an actor’s

intention to use an object in this way when charging an attempt offense. Defendant’s reading of

the statute would likewise lead to absurdity—an actor’s attempt to stab a victim with a paring knife

could not be prosecuted because the paring knife is meant for cutting vegetables, not people, and

the actor did not actually cause harm to the victim. Thus, a deadly weapon is not just an object

used in a manner that could cause death or serious bodily injury in an incident giving rise to a

charged offense; it is also a weapon that the actor intended to use in an attempt to commit an

offense the fulfillment of which would be a criminal act.

¶ 14. We turn now to our caselaw concerning the definition of a deadly weapon. The

State need not prove that an object is actually capable of causing death or serious bodily injury in

7

the moment for that object to qualify as a deadly weapon within the context of a charge for first

degree aggravated domestic assault under 13 V.S.A. § 1043(a)(2). State v. Longley, 2007 VT 101,

¶ 11, 182 Vt. 452, 939 A.2d 1028. There are two reasons for this rule. First, “the wording of the

definition of deadly weapon is broadly written to include anything that is, in the manner used,

‘known to be capable’ of producing harm.” Id. (quoting 13 V.S.A. § 1021(3)).1 “[T]he statute

does not require immediate dangerousness in fact. Instead, the statute focuses on the ‘use’ of any

object and whether such use is ‘known to be capable of producing death or serious bodily injury.’ ”

Id. ¶ 8 (quoting 13 V.S.A. § 1021(3)).

¶ 15. The second reason for the rule explained above relates to the charge of first degree

aggravated domestic assault itself. The charge in this case, like the charge in Longley, alleged that

defendant was armed with a deadly weapon and threatened to use the deadly weapon on a family

or household member. Id. ¶ 3. This charge requires the State to prove that defendant threatened

to use the deadly weapon. But it does not require an actual imminent threat—the victim need not

have been in immediate danger to support a conviction for first degree aggravated domestic assault.

Id. ¶ 11 (“In the context of first degree aggravated domestic assault, it is entirely irrelevant if a

rifle brandished to punctuate a threat was loaded and able to fire when the threat was made, because

this crime does not require an imminent threat.”); cf. State v. Riley, 141 Vt. 29, 33, 442 A.2d 1297,

1298 (1982) (explaining simple assault statute “was intended to incorporate into the criminal law

the civil notion of assault, that an action may be maintained against a person who places another

in fear of bodily injury, even if the alleged assailant acts without purpose to carry out the threat”).

Whether an object can, in the moment of the incident giving rise to a charge of first degree

aggravated domestic assault, cause death or serious bodily injury is immaterial.

1 Section 1021 was amended in 2016 to add introductory language and reorder the statute’s subsections. Reporter’s Notes—2015 (Adj. Sess.) Amendment, 13 V.S.A. § 1021. The actual language of the deadly weapons definition was unchanged, and Longley therefore still applies.

8

¶ 16. Thus, for purposes of first degree aggravated domestic assault, the statutory

definition does not turn on the actor’s use-in-fact within the incident giving rise to a charge.

Longley, 2007 VT 101, ¶ 8. Instead, whether an object qualifies as a deadly weapon turns on the

objective perception of the item’s dangerousness, or whether the object is “capable of producing

death or serious bodily injury.” 13 V.S.A. § 1021(a)(3); Longley, 2007 VT 101, ¶ 11. And so, an

inoperable firearm is a deadly weapon within the context of first degree aggravated domestic

assault because finding that an object is a deadly weapon turns on “the victim’s objective

perception of danger based on a general knowledge that firearms are ordinarily capable of inflicting

death or serious injury.” Longley, 2007 VT 101, ¶ 10; see also Riley, 141 Vt. at 32, 442 A.2d at

1298 (affirming attempted assault conviction where police officer saw defendant move handgun

from front seat during traffic stop and defendant argued officer in no actual danger because gun

was unable to fire, and applying rule that “present ability to inflict injury upon the person assailed

was [not] a prerequisite to a finding of simple assault” and “while there must be some power to do

bodily harm, either actual or apparent, apparent power alone would be sufficient”); State v. Parker,

139 Vt. 179, 183, 423 A.2d 851, 853 (1980) (explaining “[i]t is the potentiality of its use to

effectuate the implied threat of injury that makes any weapon dangerous” and affirming conviction

for assault and robbery despite fact that defendant’s gun was unloaded because “assault was

accomplished by intimidation” and weapon, though unloaded, intimidated victim); State v. Deso,

110 Vt. 1, 8, 1 A.2d 710, 714 (1938) (“In the ordinary case of an aggravated assault a dangerous

weapon is a weapon which in the way it is used or attempted to be used may endanger life or inflict

great bodily harm.” (emphasis added)).

¶ 17. This brings us squarely to defendant’s argument that the box cutter involved here

was not a deadly weapon. Defendant correctly points out that the tool at issue is not a typical box

cutter. It has a plastic guard over its top edge, the sharp cutting edges are on the sides of the tool,

and the plastic guard extends over these edges by approximately a centimeter. Thus, defendant

9

argues that because this tool has a minimal cutting edge it could not be used to cause death or

serious bodily injury and, therefore, cannot fall within the statutory definition of a deadly weapon.

¶ 18. We disagree. The capacity of the tool to cause death or serious bodily injury at the

moment of the threat is not relevant; rather, the determination of whether an object is a deadly

weapon depends on an objective perception of the dangerousness of the object in question. See

Longley, 2007 VT 101, ¶¶ 10-11. In this case, E.P. interrupted defendant while he was using the

tool to cut boxes. Objectively, then, the tool could be understood to have sharp edges and, by

extension, like any other box cutter to be “capable of producing death or serious bodily injury.”

13 V.S.A. § 1021(a)(3); see Dawson v. State, No. 14-01-01032-CR, 2002 WL 730757, at *2 (Tex.

Ct. App. Apr. 25, 2002) (affirming jury’s conclusion that box cutter was deadly weapon in

conviction for aggravated assault where defendant cut victim from underarm to middle of chest

with box cutter). Because conviction for first degree aggravated domestic assault does not turn on

whether a victim is in immediate danger, and an object may be found to be a deadly weapon if it

is objectively capable of causing harm, we hold that the box cutter here, in this particular case, is

a deadly weapon for purposes of conviction under 13 V.S.A. § 1043(a)(2).

¶ 19. Defendant next argues the State failed to present sufficient evidence that defendant

specifically intended to threaten E.P. “[A]ggravated assault is a specific-intent crime.” State v.

Bourn, 2012 VT 71, ¶ 11, 192 Vt. 270, 58 A.3d 236. In order to satisfy this element under the

charge here—that defendant threatened E.P. with a deadly weapon—“the State must show that

defendant subjectively intended to threaten [E.P.] with the deadly weapon.” State v. Cahill, 2013

VT 69, ¶ 10, 194 Vt. 335, 80 A.3d 52. “A threat is a communicated intent to inflict harm on person

or property.” State v. Cole, 150 Vt. 453, 456, 554 A.2d 253, 255 (1988). But as noted above,

conviction for first degree aggravated domestic assault arising from a threat with a deadly weapon

does not require proof that the victim was in imminent danger. See Longley, 2007 VT 101, ¶ 11.

Thus, the factfinder need not find that a defendant actually intends to carry through on a threat;

10

rather, the factfinder need only find that a defendant meant to convey that a threat would be carried

through. Cahill, 2013 VT 69, ¶ 17.

¶ 20. The State presented evidence that shortly after E.P. told her aunt that defendant

threatened her, her aunt contacted the police. In response, an officer spoke with the defendant. He

initially denied threatening E.P. The officer then untruthfully told defendant that he had spoken

with E.P.’s mother, defendant’s girlfriend, and that she had told the officer what had happened.

At that point, defendant admitted holding a box cutter to E.P.’s stomach and telling her that he

would kill her in her sleep. Defendant also told the officer that “[h]onestly, [he] was joking

around.” Defendant was then arrested, and, upon learning that the officer had not spoken with

E.P.’s mother, he told the officer that he wanted to retract his earlier statement.

¶ 21. The State also presented evidence concerning a conversation between defendant

and his brother following defendant’s arrest. This conversation was audio and video recorded, and

played during defendant’s trial. During the conversation, defendant told his brother that he

threatened E.P. with the “knife” because he was annoyed with her and that the police had the

“knife”—“[t]he knife that I threatened to kill her with. A little box cutter. I was cutting a box

with [it] and she said ‘what’s that?’ ” Defendant also told his brother that E.P. was “frightened for

her life” and “that’s all that matters.”

¶ 22. Based on this evidence, as well as E.P.’s testimony, the trial court found that at the

time of the incident defendant was “dealing with a box or some item with a box cutter.” The court

further found that E.P. was in some way distracting defendant while he worked. This “apparently

frustrated him to some degree, and at one point [defendant] takes the box cutter and puts it towards

[E.P.’s] stomach, perhaps, even making slight contact with her or, at least, holding it very close to

her stomach and tells her words to the effect [of] I’m going to kill you, or, I’m going to kill you

tonight while you’re asleep.” The court then concluded that based on the evidence, defendant

intended to threaten E.P. “The evidence is that he was doing his own chores or work and was

upset or bothered by E.P. asking him questions or otherwise somehow interfering with his focus,

11

and that he made the comment and gestured with the knife to scare her, to threaten her, because of

that.”

¶ 23. Defendant argues that he intended to make a joke and, in support, points to the fact

that he laughed after threatening E.P. Defendant raised this argument in his closing argument

before the trial court as well. There, he acknowledged through counsel that his actions were “a

really bad idea,” an inappropriate statement to a six-year-old child. Likewise, on appeal defendant

states that “[h]is timing was bad, and his choice of recipient was terrible.” The trial court found

the argument that defendant intended his actions as a joke unpersuasive. We defer to the trial

court’s weighing of the evidence and credibility determinations. Benson v. Hodgdon, 2010 VT

11, ¶ 10, 187 Vt. 607, 992 A.2d 1053 (mem.) (“Our review of a trial court’s finding of fact is

curbed by our deference to that tribunal’s unique position to assess witness credibility and the

weight of evidence presented; we reverse only for clear error.”). There is evidence in the record

to support each of the trial court’s factual findings, and those findings in turn support the court’s

conclusion that defendant intended to threaten E.P. There is no clear error here.

Affirmed.