State v. Cate, 94-419

• Decision Date: 09 August 1996
• Docket Number: No. 94-419,94-419
• Citation: 683 A.2d 1010,165 Vt. 404
• Parties: STATE of Vermont v. Kevin D. CATE.
• Court: Vermont Supreme Court

Page 1010

683 A.2d 1010

165 Vt. 404

STATE of Vermont v. Kevin D. CATE.

No. 94-419.

Supreme Court of Vermont.

Aug. 9, 1996.

Jane Woodruff, Orleans County State's Attorney, Newport, for plaintiff-appellee.

Robert Appel, Defender General, and William A. Nelson and Joel Faller, Appellate Defenders, Montpelier, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

GIBSON, Justice.

Defendant Kevin Cate appeals his conviction for sexual assault, 13 V.S.A. § 3252(a)(1)(A). He argues that the trial court erred in denying his motions for judgment of acquittal and for a new trial. He also argues that a probation condition requiring him, as part of a sex-offender therapy program, to acknowledge culpability for his conduct violates his constitutional rights to free speech and against self-incrimination. We vacate the probation condition requiring him to admit his guilt, but otherwise affirm.

Viewed in the light most favorable to the State, State v. McGee, 163 Vt. 162, 164-65, 655 A.2d 729, 732 (1995), the record discloses the following facts. On April 28, 1993, defendant and complainant, together with another woman and three other men, attended a barbecue at a friend's house in Lowell. Before arriving at the party, complainant had taken an anti-anxiety medication for which she had a prescription, and had also been drinking champagne. At the party, she drank beer and vodka, smoked marijuana, and consumed pills that another guest gave her that she believed were prescription painkillers. At one point in the afternoon, complainant, who was wearing a one-piece bathing suit, pulled down her bathing-suit top and exposed her breasts to the other guests.

As the afternoon progressed, complainant felt "extremely high" from the drugs and "very drunk" from the alcohol, and, around five o'clock, she decided to go upstairs in the house to pass out. When she entered the house, there was no one else downstairs or upstairs. She went upstairs and lay down on a bed. The next thing she remembered was waking up in bed with her bathing suit pulled down and defendant on top of her with his penis inside her vagina. According to complainant, prior to that time, she had not told defendant that he could have sex with her. When she awoke, she told defendant to "get the hell off me." Defendant complied, telling complainant, "Don't worry, I won't tell [your boyfriend]." Complainant dressed and immediately left the house to return home.

When she arrived home, complainant telephoned a female friend, who described complainant as "pretty hysterical" and "crying and sobbing." The friend told complainant to come right over, and complainant arrived within fifteen minutes, still crying and very upset. Complainant told her friend that she had gone to the barbecue in Lowell, had gotten drunk and had gone to lie down, and that when she awoke, defendant was having intercourse with her. The friend telephoned another female friend, and complainant spoke with the second friend, repeating her story. Both friends advised complainant to seek medical treatment at the Newport hospital emergency room. Complainant drove herself to the hospital that evening. Emergency room records indicated that complainant arrived at 10:47 p.m. and left at 12:55 a.m.

Defendant was arrested the next day and charged with sexual assault. According to the arresting officer, defendant reacted with "disbelief" to the charge. After waiving his Miranda rights in writing, he stated that he had had sex with complainant the previous day, but that complainant had consented. Defendant said that complainant was an "exhibitionist" who had been "flashing" at the barbecue. He told the police that he had gone into the house in the late afternoon and found complainant in the upstairs bedroom, that he and complainant started talking, and that complainant then undressed, performed oral sex with him, and engaged in sexual intercourse with him. Defendant told the police that complainant had been drinking but "wasn't that drunk" and "knew what she was doing" during the sex acts. Defendant told the officer that complainant had never fallen asleep or passed out while they were together.

The case was tried to a jury on May 17-18, 1994. Prior to trial, the court granted defendant's motion in limine to allow evidence of complainant's prior sexual conduct at the April 28 barbecue, on the grounds that such evidence was material to her lack of consent, and did not fall within the protections of Vermont's rape shield act, 13 V.S.A. § 3255(a).

At trial, the defense sought to convince the jury that complainant had not "passed out," but rather had "blacked out" at the party, and had willingly engaged in sexual conduct that she could not remember later. Complainant testified that she had in the past experienced both blackouts and passing out, and knew the difference between the two phenomena. According to complainant, when she blacked out she remained awake, whereas when she passed out she was rendered completely unconscious. She testified that she was certain she had passed out before defendant commenced any sexual acts that day, and that she had not consented to any of those acts. Complainant also testified that she had lived with defendant for three months the previous year in a nonsexual relationship, that defendant had invited her to have sex with him several times during that period, and that complainant had always refused.

Three defense witnesses, including defendant, testified concerning complainant's conduct after she had gone upstairs to the bedroom. According to these witnesses, a number of guests, including complainant and defendant, went inside the house in the late afternoon. The defense witnesses described complainant as dancing partly or fully unclothed in the upstairs bedroom while the party's host attempted to sleep, and then engaging in oral sex, first with the host and then with defendant, while the other guests watched. Defendant testified that the other guests went downstairs, leaving complainant and himself alone upstairs, and that complainant then began making gestures to indicate that she wanted to perform sex acts or oral sex on him, and that he "clearly asked it if was okay." Complainant pulled her bathing suit down around her waist and performed oral sex for about twenty minutes. Complainant then began "gesturing that we have intercourse." Defendant asked whether it would affect their friendship, and complainant said, "No, that would be okay." Complainant then removed her bathing suit entirely, and defendant and complainant "had intercourse for a short period of time," until defendant "decided myself I had enough." Defendant removed his penis and talked for a minute with complainant, who then got up and put her swimsuit back on. Whereupon defendant said, "I hope it doesn't affect our friendship." According to defendant, complainant was fully conscious throughout this period, and was never sleeping or passed out.

At the end of the State's case, and again at the conclusion of the evidence, defendant moved for acquittal on the ground that the State had failed to prove complainant's lack of consent beyond a reasonable doubt, as required under 13 V.S.A. § 3252(a)(1)(A). The court denied defendant's motion, and the jury returned a guilty verdict. The court later denied defendant's motion for a new trial.

Defendant was sentenced to five-to-fifteen years in prison, with all but three years of the prison term suspended, and to an indefinite term of probation, which included the following condition:

5. ... You shall sign an acknowledgement of responsibility for the acts for which you have been placed on probation. (This will be used for treatment purposes & will not be used against you for civil proceedings ).... It is necessary for Mr. Cate to work through denial in order to be eligible for the seex [sic] offender program in the Chittenden facility, if he does not choose to do this program, a V[iolation] O[f] P[robation] could be done while he is incarcerated and the def[endant] would then be sent to the Northwest State Corr[ectional] Facility in St. Albans.

(Emphasis added.) The present appeal followed.

I.

Defendant claims that the trial court should have granted a judgment of acquittal because there was insufficient evidence to prove beyond a reasonable doubt that complainant had not consented to defendant's sexual acts. 13 V.S.A. § 3252(a)(1)(A). In reviewing a denial of a motion for judgment of acquittal, we view the evidence in the light most favorable to the State, excluding any modifying evidence; we will uphold the court's ruling if the evidence fairly and reasonably could convince a reasonable trier of fact of defendant's guilt beyond a reasonable doubt. McGee, 163 Vt. at 164-65, 655 A.2d at 732; V.R.Cr.P. 29(a).

The State presented complainant's testimony that she was passed out at the time of the alleged offense, that she had not, up to that point, given anyone consent to have sex with her, and that, upon waking from her passed-out state, she had demanded that defendant immediately stop having sex with her. Two State's witnesses testified that complainant was "hysterical" in the hours after the alleged offense and told them that she was asleep when defendant began having intercourse with her; a third witness, the emergency room nurse who treated complainant for over an hour at the hospital, testified that complainant was still upset at 11:00 on the evening of the alleged offense. Finally, complainant's friend testified that complainant on prior occasions had rejected defendant's sexual advances. We conclude that the evidence was sufficient to fairly and reasonable convince a reasonable jury, beyond a reasonable doubt, that complainant had not consented to a sexual act with defendant.

Defendant contends, however, that complainant's testimony should have been excluded because she could not testify from personal knowledge, owing to...