State v. Isaac Faham.

• Decision Date: 18 May 2011
• Docket Number: No. 09–290.,09–290.
• Citation: 2011 VT 55,21 A.3d 701
• Parties: STATE of Vermontv.Isaac FAHAM.
• Court: Vermont Supreme Court

21 A.3d 701

2011 VT 55

STATE of Vermont

v.Isaac FAHAM.

No. 09–290.

Supreme Court of Vermont.

May 18, 2011.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

ENTRY ORDER

¶ 1. Defendant Isaac Faham appeals from his conviction of attempted sexual assault following a jury trial. Defendant was charged with violating 13 V.S.A. § 9 and 13 V.S.A. § 3252(a)(1) by lying on top of complainant and threatening to kill her if she did not have sex with him. On appeal, defendant makes two arguments: (1) the State's evidence was insufficient to prove beyond a reasonable doubt that he was guilty of attempted sexual assault; and (2) the trial court unconstitutionally denied him the opportunity to present a complete and adequate defense by precluding him from introducing evidence of complainant's prior drug use. We affirm.

¶ 2. Complainant's account of the relevant events is as follows. On March 6, 2008, defendant pulled up alongside her in his truck in downtown Burlington. She accepted his offer to go for a ride and smoke marijuana. The drive was “strange,” however, and she felt “scared” because she did not know where they were going. Complainant asked defendant a few times where they were going, but he did not respond.

¶ 3. Defendant stopped on a dirt road in an isolated area of Charlotte with few houses and lights. He got out and went behind the truck. Complainant could not see what defendant was doing, but he returned wearing different clothes. Defendant reentered the truck and “got on top of [complainant].” He started “choking” her and said that if she did not have sex with him “he was going to kill [her].” When complainant pleaded with him, he did not stop but “things kind of slowed down a little bit, and he kind of eased up a little bit.” It was enough for complainant to jump out of the truck. Complainant wanted to escape, but she ran into defendant at the back of the truck. Complainant asked defendant not to hurt her. He responded by telling her that “he had a lot of problems” and to “get out of here.” Defendant drove away, leaving complainant stranded in Charlotte.

¶ 4. Complainant hid behind a tree, “scared” because she did not know what defendant was going to do. She then ran towards a light, hoping to find help, and arrived at the home of Bethany Myrick.

¶ 5. Ms. Myrick testified that at around 11:15 p.m. on the night of March 6 complainant started pounding on her door and “hollering.” Ms. Myrick found complainant to be very upset and shaking, and she appeared as if she had been crying. Ms. Myrick further testified that complainant told her she was afraid of a man who “might be trying to get her or kill her.” After hearing complainant's story, Ms. Myrick called the police.

¶ 6. A state trooper who arrived at Ms. Myrick's home observed that complainant was “looking around ... nervously and kept checking behind her” and remained “excited, nervous, [and] fidgety.” He described complainant's emotional state as “[s]cared.”

¶ 7. Complainant described defendant's vehicle to the state troopers present at the scene. She brought one trooper to the location where defendant's truck had been parked. This trooper was able to see footprints in the snow near where the truck had been stopped, and he collected evidence, including a handcuff key on a chain and a button.

¶ 8. A trooper searched the immediate area for the vehicle described by complainant. He received notice that the Burlington Police had stopped a truck matching the description and went to speak with its driver—defendant. Defendant reported that he had been “[w]orking” that evening and that he had been in Charlotte because it was part of his “route for pick-ups.” He also told the trooper that he had not picked up anybody else, had been by himself all night, and had been the only person operating the truck that night. The trooper also noticed that defendant's pants were unzipped and his shirt was inside out. Defendant said that his pants were undone because “he was going to the bathroom” and he chose to wear his shirt inside out. The trooper saw that defendant's shirt was missing a button and that the other buttons matched the one found where the truck had been in Charlotte. When questioned about this, defendant replied that “the shirt came like that.”

¶ 9. Despite his initial statements to the trooper that he had been alone all evening, defendant subsequently admitted that he “picked the girl up” and they “were going down to party.” More specifically, defendant said that “party” meant “[s]moking reefer.” Defendant explained to the trooper, “I made my move and I was rejected.”

¶ 10. At the end of the State's case, defendant moved for judgment of acquittal under Vermont Rule of Criminal Procedure 29(a), arguing that the State had failed to prove all of the essential elements of the charged crime. The court denied the motion.

¶ 11. Defendant then testified to a different version of events. According to defendant, he had met complainant on four previous occasions, two of which involved driving around together. Defendant testified that during one of these drives he and complainant engaged in consensual oral sex.

¶ 12. Defendant testified that on the night of March 6 he saw complainant on the street and asked her if she knew where he could purchase marijuana and crack cocaine. According to defendant's testimony, complainant drove with defendant to a house where she purchased the drugs for defendant with money he supplied. Defendant testified that the two of them drove around smoking a mixture of the marijuana and crack cocaine. Defendant further testified that complainant had him driving “in circles all night” and that he did not know the roads in the area very well. According to defendant, he drove to Charlotte because complainant told him that she had friends there.

¶ 13. Defendant testified that when he stopped the truck in Charlotte they kept smoking the drug mixture and then started to kiss. At this point he “tried to make a move,” but she rejected his advance, angering him. According to defendant, “it was either, you know, we have sex, or, you know,” and he was angry because he was running out of the crack cocaine and complainant wanted to smoke more. Defendant attempted to kick complainant out of the car but she refused to get out. Defendant exited the vehicle and “grabbed her by her two arms and yanked her out [of] the truck.” He admitted that the handcuff key found by the trooper was his and had been attached to his key chain. Defendant testified that although he physically dragged complainant from the truck, he did not attack her or threaten her. Defendant explained that he drove away, leaving complainant in the road, and then turned around and drove back towards complainant. Complainant was standing in the road, so he “kind of hit the gas a little so to make her move out [of] the way ... and [ ] just kept going.” Defendant further testified that he then drove to the docks in Charlotte to complete his work for the evening.

¶ 14. A jury found defendant guilty of attempted sexual assault. Defendant filed post-verdict motions for judgment of acquittal and for a new trial. Defendant argued that the State's evidence was insufficient to prove beyond a reasonable doubt that he was guilty of the charged offense and that a new trial should be granted because the evidence presented at trial weighed heavily against the jury verdict. The trial court denied both motions, and defendant was sentenced to five to twelve years imprisonment. This appeal followed.

¶ 15. Defendant first argues that the evidence presented by the State was insufficient to support a conviction of attempted sexual assault. Specifically, defendant contends that the State's evidence was insufficient to prove beyond a reasonable doubt that defendant attempted to engage in a sexual act with complainant, a requisite element of the charged offense. We conclude, however, that this issue was not preserved because defendant failed to renew his motion at the close of the evidence. See V.R.Cr.P. 29(a); State v. Crannell, 170 Vt. 387, 407, 750 A.2d 1002, 1019 (2000) (citing Reporter's Notes to Rule 29 that failure to renew motion for acquittal “at close of all evidence forecloses appellate consideration” (quotation omitted)), overruled on other grounds by State v. Brillon, 2008 VT 35, 183 Vt. 475, 955 A.2d 1108; State v. Bressette, 136 Vt. 315, 316–17, 388 A.2d 395, 396 (1978) (holding that failure to renew motion at close of evidence or file post-verdict motion within ten days forecloses appellate review of any issue as to sufficiency of evidence).

¶ 16. Defendant did file a timely post-verdict motion for judgment of acquittal under Vermont Rule of Criminal Procedure 29(c) based on other objections: the State presented only limited physical evidence and complainant gave contradictory testimony. See V.R.Cr.P. 29(c) (whether or not a motion was made under V.R.Cr.P. 29(a), “a motion for judgment of acquittal may be made or renewed within 10 days after the jury is discharged”); State v. Brooks, 163 Vt. 245, 254, 658 A.2d 22, 28 (1995) (“[E]ven if a Rule 29(a) motion is not made, a defendant may properly raise a claim based on insufficiency of evidence by moving under V.R.Cr.P. 29(c).”). These specific issues were preserved, but they are different issues from the one defendant raises on appeal.

¶ 17. At no point in his post-verdict motion for judgment of acquittal did defendant argue that the State presented insufficient evidence on the element of attempting to engage in a sexual act. Because this issue is unpreserved, we do not reach it. See State v. Jackson, 2008 VT 71, ¶ 21, 184 Vt. 173, 956 A.2d 1126 (holding defendant failed to preserve argument that evidence at trial was insufficient to support element of restraint in his conviction for kidnapping when post-verdict motion for judgment of acquittal argued evidence was insufficient to support element of intent); State v....