State v. Kinney, 99-122.

Docket NºNo. 99-122.
Citation762 A.2d 833
Case DateOctober 13, 2000
CourtUnited States State Supreme Court of Vermont

762 A.2d 833

STATE of Vermont
Steven L. KINNEY

No. 99-122.

Supreme Court of Vermont.

October 13, 2000.

762 A.2d 836
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee

Lisa B. Shelkrot of Langrock Sperry & Wool, Burlington, for Defendant-Appellant.



Defendant Steven Kinney was convicted by a jury on charges of kidnapping, aggravated sexual assault, and lewd and lascivious behavior. He was sentenced to two concurrent terms of forty-years-to-life imprisonment and one concurrent term of four-to-five-years imprisonment. On appeal he argues that (1) the trial court erred in refusing to instruct the jury on diminished capacity as a result of intoxication, (2) there was insufficient evidence to support the conclusion that defendant had the mental state required for conviction of each crime, and (3) the trial court erred in admitting expert testimony about rape trauma syndrome. Defendant also appeals the length of the sentence imposed, claiming that it violates his constitutional right to due process and that the judge imposed it without statutory authority. We affirm both the jury verdicts and the sentence.

According to the testimony presented at trial, defendant committed the offenses during the night of October 9, 1998. He began drinking with friends around 6:00 p.m., and according to his testimony, consumed at least twelve beers during the course of the evening. He also used, together with some friends, three grams of cocaine and two "bowls" of marijuana. One of his friends testified that defendant appeared intoxicated. Defendant admitted during cross-examination that "[his] faculties would have been fairly clouded given the amount of coke, alcohol and pot [he] had consumed over the course of the evening."

At some time after 1:00 a.m., defendant and three friends drove to the home of Lucas Sweetser, hoping to buy some more cocaine. When they arrived, defendant went into the home and emerged a short time later, carrying the victim over his shoulder. He put her in the back seat of the car, and they drove away. The testimony as to what happened inside the house is conflicting. Defendant claims he found Sweetser and the victim asleep in

762 A.2d 837
bed. The victim happened to wake up, and they began to talk. The victim said she might be able to help him find some drugs to buy. When his friends pressed him to leave, defendant picked up the victim, put her over his shoulder, and carried her to the car. According to defendant, the victim was giggling, and went in the car willingly

The victim testified that she did not go with defendant willingly. She testified that when defendant woke her, he asked her to come with him, but she refused. Defendant then pulled her out of bed and threw her over his shoulder. She resisted, but defendant carried her out of the house and put her in the backseat of the car. According to the victim, she repeatedly said she did not want to go with them and asked to be let out of the car.

Once they were all back in the car, defendant and his friends gave up on finding more cocaine. Instead, they went back to the house where they had been earlier, and all five people, including the victim, drank more beer and smoked marijuana. Defendant and one of his friends testified that the victim got out of the car and walked into the house ahead of them, of her own volition. The victim testified that defendant pulled her into the house by her arm, and another of defendant's friends testified that defendant dragged her into the house "like a puppy dog." The victim also testified that she drank the beer and smoked the marijuana because she did not want defendant and his friends to think she was scared.

Eventually, the party broke up, and the victim went with defendant to his house, where he lived with his parents, because he offered to drive her home from there. According to defendant's testimony, he planned to ask his parents to drive her home, but when they got there, he decided it was too late to wake his parents. He and the victim got into bed, where "one thing led to another," and they had consensual sex. The victim, on the other hand, testified that when they got to defendant's house, he took her to his room and raped her. Afterwards, she fell asleep. In the morning when she woke up, she asked to be taken home, and he arranged for a friend to give her a ride.

Defendant first argues that the trial court erred in refusing to instruct the jury on diminished capacity as a result of intoxication. The issue was raised first by the trial court at the charge conference, but defense counsel indicated that he did not want such an instruction. He reconsidered and later told the court that he did want the instruction. By this time, the charge had been drafted, and the court said the new request was too late. Defense counsel formally objected to the lack of an intoxication instruction following the delivery of the charge to the jury. He did not argue in the closing argument that defendant did not have the requisite intent for any of the charges because of his intoxication.

Intoxication may affect a person's ability to form the mental state requisite for conviction of certain crimes. "When specific intent is an element of a crime, evidence of either voluntary or involuntary intoxication may be introduced to show that the defendant could not have formed the necessary intent." State v. Joyce, 139 Vt. 638, 639-40, 433 A.2d 271, 272 (1981); see also State v. Barrett, 128 Vt. 458, 461, 266 A.2d 441, 444 (1970). Where there is evidence of intoxication such as to negate the requisite criminal intent, the court should normally instruct the jury that it may consider the intoxication evidence as bearing on intent. See State v. Smith, 136 Vt. 520, 528, 396 A.2d 126, 130 (1978) (instruction on diminished capacity should be given where the evidence supports it and where appropriate); State v. D'Amico, 136 Vt. 153, 156, 385 A.2d 1082, 1084-85 (1978) (because there was evidence of intoxication, it was for jury to determine if mental capacity was diminished). Of course, if the evidentiary support is absent, the court need not give the instruction. See State v. Duford, 163

762 A.2d 838
Vt. 630, 631, 660 A.2d 736, 737 (1995) (mem.) (no instruction required where evidence insufficient to establish defendant's diminished capacity); see also State v. Day, 149 Vt. 165, 167, 540 A.2d 1042, 1043 (1987) (only such instructions should be given as arise from and can be based upon the evidence)

The parties agree that at least some of the charges against defendant have specific intent elements such that intent can be negated by intoxication. We emphasize, however, two points relevant to defendant's claim of error here. First, this was not a case where the jury was told that voluntary intoxication was irrelevant to whether defendant committed the crimes. Cf. State v. Dennis, 151 Vt. 223, 224, 559 A.2d 670, 671 (1989). The court gave the jury a full and fair explanation of the intent elements of the crimes, and defendant did not object to those aspects of the charge. Defense counsel was free to argue to the jury that the State failed to prove that defendant had the requisite intent in light of the intoxication evidence.

Second, evidence of alcohol or drug consumption, even in large quantities, will not by itself require the court to charge the jury that it can consider defendant's intoxication as bearing on whether he had the requisite intent to commit the crimes charged. See Jacobs v. State, 396 So.2d 1113, 1115 (Fla.1981) (evidence of alcohol consumption does not, by itself, mandate the giving of jury instructions); State v. Brown, 258 Kan. 374, 904 P.2d 985, 994 (1995) (mere consumption of intoxicants, without evidence of impairment, is insufficient to require instruction); State v. Cameron, 104 N.J. 42, 514 A.2d 1302, 1308 (1986) (same). Indeed, intoxication is not a defense unless it reaches the point where defendant fails "to achieve the state of mental responsibility" required by the charge. State v. Pease, 129 Vt. 70, 76, 271 A.2d 835, 839 (1970); see also McIntyre v. State, 717 N.E.2d 114, 124 (Ind.1999) (where record contains no evidence that defendant claimed the inability to form the requisite mens rea because of intoxication, court may properly refuse instruction); People v. Glenn, 233 Ill.App.3d 666, 175 Ill.Dec. 206, 599 N.E.2d 1220, 1232 (1992) (before court must instruct on intoxication, evidence must support that intoxication was so great defendant lacked the requisite mental state for the crime).

Although the question is relatively close, we conclude that the evidence warranted an intoxication charge, informing the jury that it could consider defendant's intoxication as bearing on his intent to commit the charged crimes. The evidence of alcohol and drug consumption alone was insufficient to require the charge, but the evidence of the amount consumed, together with the assessment of a witness that defendant appeared intoxicated on the night in question, and defendant's statement that his faculties were "fairly clouded," were sufficient to warrant the charge.

The State argues, however, that even if the court erred in failing to charge on intoxication, the error was harmless in this case. We agree. An error is not grounds for reversal of a criminal conviction if we can say beyond a reasonable doubt that the result would have been the same in the absence of the error. See State v. Carter, 164 Vt. 545, 553-55, 674 A.2d 1258, 1264-65 (1996). An error in the charge to the jury can be harmless. See State v. Wright, 154 Vt. 512, 517, 581 A.2d 720, 724 (1989). For example, in Wright, we held that an error in the charge on the elements of a lesser-included offense to felony murder was harmless because the evidence in support of any lesser-included offense was...

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    ...claim that he was somehow precluded from presenting a diminished capacity defense must be rejected. See State v. Kinney, 171 Vt. 239, 244, 762 A.2d 833, 838-39 (2000) (failure to instruct jury on diminished capacity due to intoxication was harmless error where defendant testified that victi......
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