In reviewing defendant's claim that the trial court's exclusion of evidence affected the verdict, this Court does "not play the role of factfinder; rather, our focus is on the jury and whether it would have returned a guilty verdict even if the excluded testimony had been admitted." State v. Haskins, 2016 VT 79, ¶ 17, 202 Vt. 461, 150 A.3d 202. To do this, we must consider and balance two components: "(1) the strength of the case against defendant without the excluded evidence, and (2) the strength of the excluded evidence."

Defendant did not raise his challenge below, so we review for plain error. State v. Yoh, 2006 VT 49A, ¶ 36, 180 Vt. 317, 910 A.2d 853 ; see also State v. Haskins, 2016 VT 79, ¶ 41, 202 Vt. 461, 150 A.3d 202 (reciting four-part test for plain error, including that there must be error). ¶ 7.

¶ 9. Defendant argues[*] that attempted second-degree murder "requires the State to prove that the accused had a specific intent to kill." See Roberts, 2024 VT 32, ¶ 42 (citing Haskins, 2016 VT 79, ¶ 37). Specific intent to kill requires that "defendant subjectively intended" to kill the victim.

In assessing this question, we consider the strength of the State's case without the excluded evidence and the strength of the excluded evidence. State v. Haskins, 2016 VT 79, ¶ 17, 202 Vt. 461, 150 A.3d 202.

State v. Haskins, 2016 VT 79, ¶ 37, 202 Vt. 461, 150 A.3d 202 (quotation omitted), cert. denied, 580 U.S. 1218 (2017). By contrast, second-degree murder can be proven with varying levels of intent, including "actual intent to kill, intent to do serious bodily injury, or extreme indifference to human life."

For instance, in criminal proceedings, the harmless-error standard is "harmless beyond a reasonable doubt." State v. Haskins, 2016 VT 79, ¶ 17, 202 Vt. 461, 150 A.3d 202. The same harmless-error standard applies under the Indian Child Welfare Act, which employs a beyond-a-reasonable-doubt standard in proceedings to terminate an Indian parent's rights.

Accordingly, defendant suffered no prejudice from the court's exclusion of the additional testimony, and any error was harmless. See V.R.Cr.P. 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."); State v. Haskins, 2016 VT 79, ¶¶ 17, 28, 202 Vt. 461, 150 A.3d 202 (holding error is harmless if it is beyond reasonable doubt that jury would have convicted even had error not occurred, given strength of case without excluded evidence, and strength of excluded evidence, taking into account whether it was cumulative or duplicative). B. Testimony from Detective Young Regarding Mother's Inconsistent Statement

Certainly, where a deadly weapon is actually used in a crime, the jury may use this fact to infer malice. See State v. Haskins, 2016 VT 79, ¶ 42, 202 Vt. 461, 150 A.3d 202, cert. denied, ––– U.S. ––––, 137 S.Ct. 1375, 197 L.Ed.2d 557 (2017) (holding that "court did not err by charging the jury that it could, but was not required to, infer an intent to kill from the manner in which the deadly weapon was used"). In general, other states allow the jury to infer malice and intent "where the defendant has shot the victim with a firearm under circumstances not affording the defendant an excuse, justification or provocation."