State v. Duff (1989)
In State v. Duff, 151 Vt. 433, 563 A.2d 258 (1989), the Court adopted the standard set forth in V.R.Cr.P. 12(d) as the correct standard of review under Chapter II, 40 of the Vermont Constitution and under 13 V.S.A. 7553. See generally id.
Under that standard--used to judge a motion to dismiss for lack of a prima facie case--the prosecution must establish by affidavits, depositions, sworn oral testimony or other admissible evidence "that it has substantial, admissible evidence as to the elements of the offense . . . sufficient to prevent the grant of a motion for judgment of acquittal at the trial." V.R.Cr.P. 12(d)(2).
A motion for acquittal must be granted if "the evidence is insufficient to sustain a conviction." V.R.Cr.P. 29(a).
Thus, the standard controlling a motion to dismiss for lack of a prima facie case is "whether the evidence, taken in the light most favorable to the State and excluding modifying evidence, can fairly and reasonably show defendant guilty beyond a reasonable doubt." Duff, 151 Vt. at 439, 563 A.2d at 263
In applying the Duff standard, the trial court excluded affidavits submitted by defendant, holding that they represented conflicting or modifying evidence and, as such, the law required they not be considered.