People v. Fuller

• Decision Date: 03 April 2008
• Docket Number: 101208.
• Citation: 50 A.D.3d 1171,2008 NY Slip Op 02913,854 N.Y.S.2d 594
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ERIC A. FULLER, Appellant.
• Court: New York Supreme Court — Appellate Division

50 A.D.3d 1171

854 N.Y.S.2d 594

2008 NY Slip Op 02913

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ERIC A. FULLER, Appellant.

101208.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided April 3, 2008.

Appeal from a judgment of the County Court of Essex County (Halloran, J.), rendered May 8, 2003, upon a verdict convicting defendant of the crimes of rape in the first degree, rape in the third degree, sexual abuse in the first degree (two counts), forcible touching, unlawful dealing with a child (three counts) and endangering the welfare of a child (four counts).

Peters, J.P.

During the evening of May 18, 2002, defendant purchased alcohol for his teenage daughter and three of her high school girlfriends who had gathered at defendant's home in Clinton County. He then left the home, returning at approximately 1:00 A.M. By that time, all of the girls were feeling intoxicated. Two girls, victim A (born in January 1986) and victim B (born in September 1986), socialized with defendant, who poured shots of liquor which victim A and defendant consumed. As victim B lay on the living room couch, defendant allegedly positioned his body on top of her. She pushed him off with her legs and stood up, whereupon defendant grabbed her vagina and, as she walked away, her buttocks. Thereafter, defendant was alone in the basement with victim A, who laid down on cushions that were situated on the floor and "passed out." When she awoke, defendant had his finger in her vagina and was on top of her kissing her face. According to victim A, she could not say or do anything to defendant during the attack because she was not fully conscious; she then "passed back out." When she awoke, her pants were around her ankles and "stuff" was dripping down her leg.

Defendant was thereafter indicted for rape in the first degree, rape in the third degree, sexual abuse in the first degree (two counts), forcible touching, unlawful dealing with a child (three counts) and endangering the welfare of a child (four counts). At the ensuing jury trial, defendant denied having intercourse with victim A or inserting his finger into her vagina. Rather, he contended that they shared a mutual kiss and, in a moment of excitement, he ejaculated on her hands and pajama bottoms as she attempted to pull down his sweatpants. Defendant also claimed that he did not inappropriately touch victim B, but may have inadvertently made contact with her when he stumbled on a coffee table and placed his hands out to catch himself. Defendant was ultimately convicted as charged and thereafter sentenced to consecutive prison terms of 25 years for his conviction of rape in the first degree and seven years for his conviction of sexual abuse in the first degree under count six of the indictment, with all other counts running concurrently. He now appeals.

Defendant challenges his convictions for rape in the first degree, rape in the third degree and sexual abuse in the first degree with respect to victim A, claiming that such convictions are not supported by legally sufficient evidence and are against the weight of the evidence. Particularly, he contests the proof on the element of sexual intercourse with respect to the rape charges (see Penal Law § 130.25 [2]; § 130.35) and the element of physical helplessness with regard to the rape in the first degree and sexual abuse in the first degree charges (see Penal Law § 130.65 [2]; § 130.35 [2]).^*

It is well settled that sexual intercourse can be established by medical evidence where the victim is unable to testify as to penetration (see People v Carroll, 95 NY2d 375, 383 [2000]; People v Dunn, 204 AD2d 919, 920 [1994], lv denied 84 NY2d 907 [1994]). At trial, a sexual assault nurse examiner testified that sperm or seminal fluid can remain in the vaginal pool for up to 72 hours, and victim A testified that she had not had sexual intercourse within the 72 hours prior to the incident. Russell Gettig, a forensic scientist with the State Police, indicated that the vaginal swab taken from victim A less than two days after the incident and stain cuttings taken from the pajama bottoms that she was wearing on the night of the incident each revealed the presence of sperm. Gettig further testified that the sperm on the pajamas matched the DNA of defendant and that the vaginal swabs taken contained the DNA of victim A mixed with that of defendant. Viewing this evidence in a light most favorable to the People, we find a valid line of reasoning and permissible inferences which could lead the jury to conclude that penetration had occurred (see People v Edwards, 38 AD3d 1133, 1133 [2007], lv denied 9 NY3d 864 [2007]; People v Bowles, 97 AD2d 886, 886-887 [1983]).

With respect to the element of physical helplessness, that is, where "a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act" (Penal Law § 130.00 [7]), we have repeatedly held that "a person who is sleeping is `physically helpless' for the purposes of consenting to sexual intercourse, particularly where the sleep was drug and alcohol induced" (People v Williams, 40 AD3d 1364, 1366 [2007], lv denied 9 NY3d 927 [2007]; see People v Sensourichanh, 290 AD2d 886, 886 [2002]). Here, victim A testified that she is approximately five feet tall and 105 pounds and was "very drunk" on the night of the incident. Victim A also testified that she "passed out" and awoke to find defendant with his finger in her vagina and thereafter "passed back out" during the time in which defendant allegedly performed sexual intercourse. Such evidence was sufficient to permit the jury to conclude that victim A was physically helpless at the time of the criminal acts (see People v DeCicco, 38 AD3d 937, 937 [2007], lv denied 8 NY3d 983 [2007]; People v Beecher, 225 AD2d 943, 945 [1996]; People v Thiessen, 158 AD2d 737, 740 [1990], mod 76 NY2d 816 [1990]). Having found a valid line of reasoning and permissible inferences for a rational jury to conclude that intercourse occurred and that victim A was physically helpless, defendant's convictions with respect to victim A are supported by legally sufficient evidence. Further, while a different verdict would not have been unreasonable in light of the contradictory version of events offered by defendant, after conducting an independent review of the evidence and according great deference to the jury's assessment of the credibility and demeanor of the witnesses, we are satisfied that the verdict of guilty on each of these counts was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]).

As to victim B, we reject defendant's contention that his conviction of forcible touching was not supported by legally sufficient evidence and against the weight of the evidence. One who "intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor's sexual desire," is guilty of forcible touching (Penal Law § 130.52). Here, victim B testified that when she stood, defendant grabbed her vagina and, as she walked away, he grabbed her buttocks. Because the inquiry as to whether a defendant was seeking sexual gratification can be inferred from his or her conduct (see People v Watson, 281 AD2d 691, 697 [2001], lv denied 96 NY2d 925 [2001]; People v Beecher, 225 AD2d at 944-945) and such an inference is "`clearly appropriate ... when a nonrelative causes intimate contact with a child'" (People v Watson, 281 AD2d at 698, quoting Matter of A.G., 253 AD2d 318, 326 [1999]), we find that victim B's testimony provided the jury with a valid line of reasoning to support the conclusion that defendant touched her vaginal area and buttocks in pursuit of sexual gratification (see People v Garcia, 13 AD3d 818, 819 [2004]). Likewise, upon the exercise of our factual review powers, we find the verdict in this regard to be supported by the weight of the evidence (see People v Bleakley, 69 NY2d at 495).

We reach a different conclusion, however, as to defendant's claim that his conviction for sexual abuse in the first degree with respect to victim B was legally insufficient and against the weight of the evidence. In order to convict defendant of sexual abuse in the first degree, as charged, the People were required to prove that he subjected victim B to sexual contact by forcible compulsion (see Penal Law § 130.65 [1]). As relevant here, forcible compulsion is defined as compelling another "by either ... use of physical force; or ... a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person" (Penal Law § 130.00 [8]). With no evidence that the sexual contact was brought about by the use of physical force, we turn to the "evidence establishing the state of mind of the victim caused by defendant's conduct" to ascertain whether the sexual contact was compelled by threat or fear (People v Davis, 21 AD3d 590, 591 [2005]; see People v Thompson, 72 NY2d 410, 415-416 [1988]). Significantly, victim B testified that defendant did not say anything either prior to or during the alleged sexual contact and, moreover, there is no testimony that victim B was fearful of defendant. To the contrary, victim B stated that she simply walked into the kitchen and ignored the alleged incident and shortly thereafter went back into the living room and onto the couch. Thus, despite the disparity in age, size and strength between defendant and victim B, there was insufficient proof to support the element of forcible compulsion (compare People v Val, 38 AD3d 928, 929 [2007], lv denied 9 NY3d 852 [2007]; People v Stephens, 2 AD3d 888, 889 [2003], lv denied 2 NY3d 746 [2004]). We are empowered, however, to reduce defendant's conviction to the lesser included offense of sexual abuse in the...