State v. Fuller

• Citation: 721 A.2d 475
• Decision Date: 11 September 1998
• Docket Number: No. 95-534.,95-534.
• Court: United States State Supreme Court of Vermont
• Parties: STATE of Vermont v. Kenneth FULLER.

721 A.2d 475

STATE of Vermont v. Kenneth FULLER.

No. 95-534.

Supreme Court of Vermont.

September 11, 1998.

Motion for Reargument Denied October 14, 1998.

Peter R. Neary, Rutland County Deputy State's Attorney, Rutland, for Plaintiff-Appellee.

Robert Appel, Defender General, Henry Hinton, Appellate Attorney, Montpelier, and Kenneth Fuller, pro se, Swanton, for Defendant-Appellant.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

SKOGLUND, J.

Defendant Kenneth Fuller appeals his conviction for aggravated sexual assault of his step-son in violation of 13 V.S.A. § 3253(a)(9). Defendant contends that (1) the evidence was insufficient to permit his conviction for violating 13 V.S.A. § 3253(a)(9), and (2) the trial court denied defendant his federal and state constitutional rights to confront an adverse witness and to call for evidence in his favor by excluding Donna Fuller's (defendant's wife) out-of-court statements made to a third party, and by excluding letters written by Ms. Fuller, and mailed to defendant while he was in jail. We affirm.

Defendant and Ms. Fuller were married in 1993. Ms. Fuller has one son, S.E., from a previous relationship. At the time of the incident, S.E. was eleven years old. According to S.E., one evening while Ms. Fuller was at work and defendant and S.E. were at home alone, defendant purchased beer and forced S.E. to drink some of it. Soon afterwards, S.E. felt tired and went into a bedroom to sleep. Defendant followed S.E. into the bedroom and laid down next to the boy on the bed. While talking to S.E. about sex, defendant pulled down his pants and began to masturbate. Realizing what defendant was doing, S.E. attempted to get off of the bed but defendant grabbed the boy, pulled down S.E.'s pants, and placed his mouth on S.E.'s penis for five to ten seconds. S.E. was finally able to escape and ran into the living room. Defendant followed S.E. into the living room, threw the boy onto a couch, and again placed his mouth on S.E.'s penis for approximately a minute.

About one week later, S.E. informed Ms. Fuller about the sexual assault. According to Ms. Fuller, when she confronted defendant about the allegation, he initially denied it but later admitted the offense. In addition, Ms. Fuller related the boy's allegation to her sister during a telephone call. The sister reported the incident to the Department of Social and Rehabilitation Services (SRS). Approximately one month later, SRS interviewed the boy and Ms. Fuller. At that time, they both denied that any sexual assault had occurred. Ms. Fuller also denied that she had talked to her sister about such an incident.

A few months later, however, after defendant was arrested for a domestic altercation between defendant and Ms. Fuller, S.E. and Ms. Fuller reported the alleged sexual assault to the police. While defendant was being held in pretrial confinement on the aggravated domestic assault charge, Ms. Fuller denied to the defense attorney's investigator that the sexual assault took place. About one month after defendant's arrest for domestic assault and while still in pretrial confinement, defendant was charged with aggravated sexual assault of S.E.

At his trial for aggravated sexual assault, defendant maintained his innocence and contended that S.E. and Ms. Fuller had concocted the charges against him because of defendant's abusive conduct towards Ms. Fuller and the boy's resentment of defendant's intrusion into S.E.'s relationship with his mother. Furthermore, defendant asserted that Ms. Fuller's sister had falsely reported the sexual abuse claim to SRS so as to wrest custody of S.E. away from Ms. Fuller.

In an attempt to prove his theory of the case during cross-examination of Ms. Fuller, defendant tried to enter into evidence potentially exculpatory statements from two letters Ms. Fuller sent to defendant while he was in pretrial confinement for the domestic assault charge but before he was charged with aggravated sexual assault. At a Rule 104 hearing, without the jury present, the letters were held inadmissible.

Soon after the trial resumed, defendant's attorney received note from a man, Ken Harris, which read, "Your client has not done anything to [S.E.]." After an interview with Mr. Harris, it was determined that Ms. Fuller and Mr. Harris had dated for several months after defendant was arrested and awaiting trial and that Ms. Fuller had made potentially exculpatory statements to Mr. Harris. Upon learning this information, defendant again attempted to enter into evidence the statements from Ms. Fuller's letters and, in addition, Mr. Harris's testimony. At a second Rule 104 hearing held outside the presence of the jury, the court again ruled the letters inadmissible and also found Mr. Harris's testimony inadmissible.

Defendant was subsequently found guilty of aggravated sexual assault in violation of 13 V.S.A. § 3253(a)(9) and was sentenced to twenty to forty years in prison. This appeal followed.

I.

Defendant first contends that the evidence presented at trial was insufficient to convict him of aggravated sexual assault in violation of 13 V.S.A. § 3253(a)(9). Section 3253(a)(9) states, in relevant part, that "[a] person commits the crime of aggravated sexual assault if the person commits sexual assault [and] ... [t]he victim is subjected by the actor to repeated nonconsensual sexual acts as part of the same occurrence." Defendant claims the evidence showed only that "one continuous, very brief episode motivated by a single impulse interrupted" had occurred and, therefore, he could be convicted only of sexual assault in violation of 13 V.S.A. § 3252. Defendant reasons that, because the sexual assault of S.E. in the bedroom lasted only five to ten seconds and then quickly recommenced in the living room after S.E. escaped from the bedroom, the evidence was insufficient to prove "repeated nonconsensual sexual acts."

We recognize the rebuttable presumption that the crime of sexual assault is not a continuous offense and, therefore, each assault constitutes a separate and distinct offense. See Harrell v. State, 88 Wis.2d 546, 277 N.W.2d 462, 472 (Wis.Ct.App.1979) (stating although sexual abuse or sexual gratification may constitute goal of assault, course of defendant's conduct to effectuate single goal is not necessarily single offense because single criminal goal may be effectuated by multiple criminal acts that are separate and distinct offenses); cf. State v. Dennis, 537 S.W.2d 652, 654 (Mo.Ct.App.1976) (rape is not continuous offense); Lillard v. State, 528 S.W.2d 207, 211 (Tenn.Crim.App.1975) (defendant who raped woman once may not again assault and ravish her with impunity at another time and place). To hold otherwise, "deprecates the heinous and violent nature of each act and the effect each act has upon the victim." People v. Smith, 246 Ill.App.3d 647, 186 Ill.Dec. 547, 616 N.E.2d 737, 742 (1993). As one of our sister states noted:

Repeated acts of forcible sexual intercourse are not to be construed as a roll of thunder, — an echo of a single sound rebounding until attenuated. One should not be allowed to take advantage of the fact that he has already committed one sexual assault on the victim and thereby be permitted to commit further assaults on the same person with no risk of further punishment for each assault committed. Each act is a further denigration of the victim's integrity and a further danger to the victim.

Harrell, 277 N.W.2d at 469.

In deciding whether an incident of sexual assault consists of one continuous assault or separate acts, we consider several factors, including: the elapsed time between successive parts of the defendant's conduct; whether the defendant's conduct occurred in more than one geographic location; whether an intervening event occurred between successive parts of the defendant's conduct; whether there was sufficient time for reflection between assaultive acts for the defendant to again commit himself. See Smith, 186 Ill.Dec. 547, 616 N.E.2d at 741-42.

Admittedly, defendant's conduct in the bedroom and the living room was close in time. There was, however, an intervening event between the two acts — S.E.'s escape from defendant and his flight from the bedroom into the living room. Most importantly, defendant had sufficient time between the commission of the two acts to reflect upon what he was doing and to recommit himself to sexually assaulting the child that had escaped. See Harrell, 277 N.W.2d at 470 (even more germane than the time interval is fact defendant formed intent to again assault victim and again applied force necessary to accomplish his purpose).

Defendant's reliance on State v. Perrillo, 162 Vt. 566 649 A.2d 1031 (1994), is misplaced. Perrillo was charged with two violations of 13 V.S.A. § 2602, which proscribes "any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of sixteen years, with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of such person or of such child." In Perrillo, defendant carried his victim to a couch and proceeded to touch the victim's chest and then her genitals. Neither Perrillo nor the victim left the couch during the commission of the crime and, according to the victim, the incident lasted "about a few minutes or so." Perrillo, 162 Vt. at 567,649 A.2d at 1032. Perrillo was found guilty of, one, placing his hand inside the victim's pants and rubbing his hand on her vulva and, two, putting his hand inside the victim's shirt and rubbing her chest. On appeal, Perrillo contended that the sentence of five to ten years (two to five years consecutive on each count) doubled the allowable penalty intended by the Legislature for the crime. See id. We reversed his conviction, holding that "[b]ecause a single episode of sexual misconduct ordinarily involves the wrongdoer touching the victim more than once, we do not think the...