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State v. Russo10/8/2004
and started drinking is relevant, ... but not this other information about him being upset to the level of not forming an intent to commit the crime." Defense counsel again tried to argue that the receipt of welfare would show why defendant was drinking, and the court answered that the reason he was drinking was irrelevant and "would serve ... to prejudice the jury."
11. The witness described defendant as going from a "strong man" to a "low man" after three years of battling over the motel. She described in detail defendant's intoxication on the date of the offense and his related behavior. She testified that he was not himself and was incoherent.
12. Although we have a broad rule of relevancy, see V.R.E. 401, the trial judge has discretion in making a relevancy ruling and will not be overturned absent abuse of that discretion. State v. Larose, 150 Vt. 363, 371, 554 A.2d 227, 232-33 (1988). Moreover, relevant evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or needless presentation of cumulative evidence. V.R.E. 403. Again, a ruling based on Rule 403 is discretionary. State v. Griswold, 172 Vt. 443, 448, 782 A.2d 1144, 1148 (2001).
13. Defendant argues that the excluded evidence went to whether defendant had the intent to commit the crime and was acting under diminished capacity, emphasizing that alcohol consumption represented only one aspect of defendant's argument that he lacked the requisite intent. In response to the prosecution's objection, however, defense counsel was required to make an offer of proof and state the ground on which it was admissible. See V.R.E. 103(a)(2); State v. Ringler, 153 Vt. 375, 378, 571 A.2d 668, 670 (1989). The offer went solely to defendant's intoxication and the diminished capacity defense based on intoxication. Defense counsel did not articulate other factors, not based on intoxication, that he now argues in this appeal. The court allowed defense counsel to elicit from the witness the evidence in support of the alcohol-based diminished capacity defense.
14. We also emphasize the court's discretion in ensuring the evidence was before the jury for a proper purpose. By the reference to prejudicing the jury, the court was apparently concerned that the proffered evidence went more to the dispute between defendant and McKay, and sought to put defendant in a sympathetic light while creating hostility for McKay. The court had discretion to prevent this misuse of the evidence by limiting testimony of marginal relevance that did not undercut the diminished capacity defense. We find no error in the evidentiary rulings.
15. Next, defendant challenges the jury instructions, specifically the trial judge's refusal to charge simple assault and reckless endangerment as lesser-included offenses. A criminal defendant is entitled to have the jury instructed on every offense that is composed solely of some of the same elements as the offense charged and is supported by the evidence. Alexander, 173 Vt. at 382, 795 A.2d at 1253; State v. Delisle, 162 Vt. 293, 301, 648 A .2d 632, 637 (1994). A defendant benefits from such an instruction "because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal." Beck v. Alabama, 447 U.S. 625, 633 (1980). According to defendant, given the option to do so, the jury would have chosen to convict him of a lesser offense, involving only general intent, because the evidence did not support a finding that he had the specific intent to injure McKay.
16. Although a criminal defendant is entitled to a charge on every lesser-included offense supported by the facts in evidence, simple assault and reckless endangerment are not,
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