State v. Grenier, 90-313

• Decision Date: 28 February 1992
• Docket Number: No. 90-313,90-313
• Citation: 605 A.2d 853,158 Vt. 153
• Parties: STATE of Vermont v. John F. GRENIER.
• Court: Vermont Supreme Court

Page 853

605 A.2d 853

158 Vt. 153

STATE of Vermont v. John F. GRENIER.

No. 90-313.

Supreme Court of Vermont.

Feb. 28, 1992.

William Sorrell, Chittenden County State's Atty., Burlington, and Pamela Hall Johnson, State's Atty. and Sheriffs Dept., Montpelier, for plaintiff-appellee.

Kenneth Schatz, Acting Defender Gen., and William Nelson, Appellate Atty., Montpelier, for defendant-appellant.

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

GIBSON, Justice.

Defendant John Grenier appeals his conviction for lewd and lascivious conduct, 13 V.S.A. § 2601. He argues that the trial court erred (1) in failing to instruct the jury that lewd and lascivious conduct is a specific-intent crime, (2) in instructing the jury on lewd and lascivious conduct as a lesser-included offense of sexual assault, (3) in allowing testimony that should have been excluded under V.R.E. 404(b), and (4) in failing to strike part of the presentence report after defendant objected to its accuracy under V.R.Cr.P. 32(c)(4). We affirm the conviction, but agree with defendant on his fourth claim of error. We therefore vacate the sentence and remand the case for resentencing.

Defendant was originally charged with two counts of sexual assault, 13 V.S.A. § 3252(a)(1), for allegedly inserting his finger into the vaginas of two women. Defendant went to the home of one of the women late one night after he had been drinking heavily. She was asleep downstairs and, upon being awakened, let defendant in, believing him to be the boyfriend of her babysitter, who was in bed upstairs. Defendant went upstairs, where he restrained the babysitter and fondled her, conduct that he later admitted was wrongful. He then returned downstairs, where he fondled the other woman, with whom he had had prior sexual relations. After this second alleged sexual assault, he and the second woman engaged in consensual sexual intercourse. The jury found defendant guilty of one count of lewd and lascivious conduct for his acts against the woman upstairs.

I.

Defendant first argues that the court erred in failing to instruct the jury that a conviction for lewd and lascivious conduct requires a finding that defendant acted with specific intent to outrage the feelings of the alleged victim, i.e., the intention to achieve a precise harm or result. See State v. Audette, 149 Vt. 218, 220, 543 A.2d 1315, 1316 (1988). Section 2601 reads, "A person guilty of open and gross lewdness and lascivious behavior shall be imprisoned not more than five years or fined not more than $300.00, or both." Although § 2601 sets out no specific-intent element, defendant contends that such an element is implicit and must be read into the statute. The court instructed the jury, however, that it was "not necessary for the State to prove that defendant intended the precise harm ... which occurred"--in other words, the court charged that a conviction could rest on a finding of general wrongful intent.

Upon examination of the record, we conclude that defendant did not preserve the issue of whether lewd and lascivious conduct is a specific-intent crime. Although defendant sought a specific-intent instruction at the charge conference, this request pertained to the sexual assault charges, which are not before us. ¹ Because defendant made no argument concerning the requisite mental state for lewd and lascivious conduct either during the conference or when he renewed his motion before the jury retired, we consider only whether the court's instruction was plain error. V.R.Cr.P. 52(b); State v. Wright, 154 Vt. 512, 520, 581 A.2d 720, 725-26 (1989).

Defendant relies on State v. Millard, 18 Vt. 574, 577 (1846), and State v. Purvis, 146 Vt. 441, 443, 505 A.2d 1205, 1207 (1985), which state that the crime of lewd and lascivious conduct is committed by lewd actions that are calculated to excite unchaste feelings and passions and outrage the feelings of the other person. In those cases, however, the issue of whether lewd and lascivious conduct is a specific-intent crime was not before the Court. Further, the language of the two cases does not appear in § 2601, although comparable language is contained in § 2602. ² If the Legislature had intended to include specific intent, in addition to general intent, as an element of lewd and lascivious conduct, it presumably would have done so. See State v. Kerr, 143 Vt. 597, 605, 470 A.2d 670, 674 (1983) (Court will expand plain meaning with greatest caution and will read the element of scienter into a statute only when necessary to make it effective).

We have previously considered whether omitting the element of intent from a jury charge on sexual assault on a minor amounted to plain error, and concluded that "[e]ven if intent were an element of the offense, ... its omission from the information and jury charge would not constitute ... plain error." State v. Giroux, 151 Vt. 361, 365, 561 A.2d 403, 406 (1989). In the present case, we conclude that the omission of an instruction on specific intent was not plain error.

II.

Defendant next argues that the court committed plain error in instructing the jury that lewd and lascivious conduct was a lesser-included offense of sexual assault. Defendant points out that this Court has previously recognized the improper use of a lesser-included-offense instruction to be plain error, requiring reversal. State v. Nicasio, 136 Vt. 162, 164, 385 A.2d 1096, 1098 (1978). In Nicasio, the Court held that operation of a motor vehicle without the owner's consent is not a lesser-included offense of grand larceny of an automobile, and entered judgment for the defendant. The Court noted that it was unable to determine from the record whether the defendant had in fact operated the vehicle, but commented that the verdict could not stand even had there been evidence of actual operation.

In the instant case, however, defendant requested the court to charge lewd and lascivious conduct as a lesser-included offense. The State initially objected, and the court refused defendant's request. When the State withdrew its opposition, the court agreed to give the instruction, and defendant expressed his satisfaction with this approach. Under these circumstances, defendant is bound by the tactical decision he made at trial. See State v. McCarthy, 156 Vt. 148, 159, 589 A.2d 869, 876 (1991) (Morse, J., dissenting) ("adversarial system of justice favors a neutral court allowing the advocates, within bounds, to try the case before it as they wish"); Craig v. State, 484 N.E.2d 566, 567-68 (Ind.1985) (defendant who won motion to have separately charged felony treated as lesser-included offense to companion charge, and was convicted of the lesser offense, was barred on appeal from complaining that felony was not properly a lesser-included offense).

Defendant thus received the benefit he sought in that he was found guilty of the lesser offense. If error occurred, it was invited by defendant and will not be used by us as a basis for reversal.

III.

Defendant's third claim of error is that the court erred in allowing a police detective to testify on direct examination that defendant had admitted "what had happened was a problem; that he had had a problem before that he sought counselling for." Defendant argues that this testimony constituted evidence of prior bad acts that should not have been admitted, because its only purpose was to show that defendant was a man of bad character who had a predisposition to sexual aggression. See V.R.E. 404(b); State v. Catsam, 148 Vt. 366, 380, 534 A.2d 184, 193 (1987). The court admitted the testimony, balancing its probative value against its prejudicial effect under V.R.E. 403.

The detective's testimony triggered Rule 404(b) because it tended to undermine defendant's character by its implication of prior bad acts. It was also, however, a virtual admission by defendant that the women did not consent to his advances, a fact that was relevant to proof of the sexual assault charges. Rule 404(b) does not require the exclusion of evidence of bad acts if the evidence is also relevant to another issue, such as knowledge or intent, as long as its probative value is not substantially outweighed by the danger of unfair prejudice. State v. Bruyette, 158 Vt. 21, ----, 604 A.2d 1270, 1272-73 (1992). In the instant case, the court decided that the testimony was relevant to the issue of consent and was not unduly prejudicial. We will not disturb its ruling absent an abuse of discretion. In re S.G., 153 Vt. 466, 473, 571 A.2d 677, 681 (1990). We find no such abuse herein, where no details of defendant's prior "problem" were provided, and defendant had stated to the detective that he knew what he had done was wrong.

IV.

Finally, defendant claims that he is entitled to be resentenced because the court did not follow V.R.Cr.P. 32(c)(4) ³ when it heard defendant's timely motion to strike a portion of the presentence report (PSI). Defend...