Supreme Court upholds man's conviction on split vote

BENNINGTON — A local man's conviction for first degree aggravated domestic assault with a deadly weapon was upheld by the Vermont Supreme Court, but it was a split decision.

The justices voted 3-2 last month to uphold Justin Kuzawski's July 2016 conviction, based on an incident the previous year in which he threatened his girlfriend's six-year-old daughter with a box-cutter tool he'd been using to work with boxes.

Kuzawski contended in appealing his conviction that he used an object that could not be considered a deadly weapon in that situation, that he did not harm the girl and hadn't intended to truly threaten the victim by his actions. He contended he had been joking.

According to the Supreme Court's decision, the girl "approached him and asked what he was doing. Defendant initially told her `[n]othing, none of your business.'"

When the girl persisted, "defendant then held the box-cutter he was using next to [her] stomach and told her that he would kill her in her sleep. He then laughed, and [the girl] ran away," according to the decision.

The girl later told a relative what had happened, and the police were called, leading to Kuzawski's arrest in July 2015.

A central point in the appeal was that the box-cutter was not a typical model with an open, pointed blade at the end, but one "covered with a sheath of hard plastic" beneath which 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 edge by approximately a centimeter."

The tools are advertised as "safety box cutters."

The appeal contended that Superior Court Judge David Howard erred in the verdict because there was insufficient evidence that Kuzawski was using a deadly weapon or that he intended to threaten the girl. The Supreme Court majority agreed that there were "no clear error" at the trial court level.

The level of charge was discussed in the court's decision. Unlike a lesser misdemeanor charge, the felony first degree domestic assault with a deadly weapon charge allowed a sentence of up to 15 years. After finding the defendant guilty of the felony, Howard sentenced Kuzawski to 8 months to 4 years in prison. The maximum sentence for the charge was 15 years imprisonment.

Kuzawski was found not guilty of cruelty to a child.

There was discussion among attorneys on both sides and members of the court during oral arguments in September concerning the definition of a deadly weapon and when an object normally not used as a weapon — unlike a firearm — should be considered a deadly weapon.

In the decision, Chief Justice Paul Reiber and Justices Harold Eaton Jr. and Karen Carroll voted to uphold the trial court's decision, and Justices Marilyn Skoglund and Beth Robinson dissented.

Robinson, who wrote a dissenting option, stated in part: "I don't take issue with the majority's legal analysis that the deadliness of an implement (or weapon) should be assessed with reference to the way it is used or threatened to be used. But even within the majority's own framework, I cannot agree that defendant threatened to use the otherwise non-deadly tool at issue here in a way that converted it to a deadly weapon. The majority's holding expands the reach of the assault-with-a-deadly-weapon statute beyond any reasonable bounds."

She added: "Used in the manner threatened here, this tool is not a deadly weapon. Although the tool contains a cutting blade, the blade is protected such that it cannot actually cut anything thicker than the side of a box."

The tool as designed "is capable of cutting (or in the case of a stapler, puncturing) something," Robinson wrote, "but is engineered so that it would be extremely difficult to use to cut (or puncture) anything other than the specific object it was designed to cut or puncture. The blade in this case faces opposite the tip of the implement. You can ram this tool into someone's abdomen, but it won't penetrate their skin."

She concluded: "The evidence in this case could support a conviction of defendant for any number of crimes. Domestic assault with a deadly weapon is not one of them."

The majority opinion stated in part, "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."

The majority added: "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."

In addition, "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," the court majority wrote.

The majority stated that Kuzawski "argues that he intended to make a joke and, in support, points to the fact that he laughed after threatening [the girl]. 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 ... 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."

Kuzawski was represented in the appeal by Emily Tredeau, staff attorney, with the Prisoner's Rights Office of the Office of the Defender General, staff attorney, and Joshua O'Hara, of the Appellate Division of the Office of the Defender General.

"The dissent adopted some of our arguments," Tredeau said this week. "I wish the full court could have agreed, but we respect the decision of the court."

Jim Therrien writes for New England Newspapers in Southern Vermont and Email: @BB_therrien on Twitter.


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