State v. Loveland

• Decision Date: 09 August 1996
• Docket Number: No. 95-136,95-136
• Citation: 684 A.2d 272,165 Vt. 418
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Michael LOVELAND.

Page 272

684 A.2d 272

165 Vt. 418

STATE of Vermont v. Michael LOVELAND.

No. 95-136.

Supreme Court of Vermont.

Aug. 9, 1996.

Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant Attorney General, Montpelier, for plaintiff-appellee.

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

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

DOOLEY, Justice.

Defendant appeals his conviction for sexual assault on a minor in violation of 13 V.S.A. § 3252(a)(3). He contends that the trial court: (1) committed plain error by instructing the jurors that he had stipulated to the facts that he was not married to the victim and that the victim was under the age of sixteen; and (2) impermissibly enhanced his sentence because he invoked his privilege against self-incrimination. We affirm the conviction, but reverse the court's sentence.

Defendant was charged with committing sexual assault on his minor stepdaughter. Defendant testified on his own behalf at trial, denying that the sexual assault ever occurred. The jury rendered a guilty verdict.

A presentence investigation was ordered, and the report showed that defendant, who was out on bail prior to his trial, had a good work history and had been employed at his current job for ten months. Except for a technical violation of the bail release conditions, he had complied with the conditions of release. At sentencing, although he informed his counsel that he was willing to undertake sex offender therapy as a condition of his probation, defendant continued to maintain his innocence. When the court asked defendant if he had anything to say, defendant replied, "No."

In determining defendant's sentence, the court found that he had no prior history of sexually abusing children, and that this fact would be a mitigating factor at sentencing. Nevertheless, the court concluded that defendant had committed "serious misconduct that deserves punishment," and that a period of incarceration was necessary to protect the public. The court then considered but rejected a proposed sentence that would include probation, concluding that defendant's refusal to acknowledge any responsibility for the crime would make it difficult for him to successfully complete the sexual offender treatment program. The court sentenced defendant to six to twelve years in prison, with no conditions of probation. Defendant appeals both the conviction and the sentence.

Defendant first argues that it was error for the court to direct the jury to consider two elements of the offense as proven: that (1) the victim was under the age of sixteen, and (2) defendant and the victim were not married. The issue arose at the charge conference, which was held in open court with defendant present. The court asked defendant's counsel whether he could "tell the jury that the elements that the other person was under the age of sixteen has been established, and the element that the other person, namely K.P., and the defendant were not married, have been established?" Defendant's counsel replied, "Yes, that's fine, sir." Defendant registered no objection to this action.

Following the charge conference, the court instructed the jury as follows:

The third element is that the defendant engaged in the sexual act with a person who was under the age of sixteen. Here, it's alleged that K.P. was under the age of sixteen, and the parties have stipulated that you may consider that--you may consider as established that she was under the age of sixteen and you should, therefore, consider that element has been proven. That is, that at the time alleged, K.P. was under the age of sixteen.

The fourth element is one--is that the persons who engaged in the sexual act, that is the defendant and K.P. were not married to each other and, again, the parties have stipulated that is a fact and you should consider, therefore, that element has been established.

It is undisputed that the victim was six years old when the sexual assault occurred. Defendant also does not dispute the fact that he was not married to the victim, who in fact was his stepdaughter at the time. On appeal, the only claim is that the court committed error by depriving defendant of his right to a jury trial on all essential elements of the crime, without his express waiver of that right.

Defendant has framed his claim as one of an invalid jury trial waiver in order to avoid the consequences of nonpreservation. In a series of cases, we have allowed defendants to attack the validity of jury trial waivers in this Court without any preservation below. See, e.g., State v. West, 164 Vt. 192, ----, 667 A.2d 540, 544-48 (1995); State v. Coita, 153 Vt. 18, 21, 568 A.2d 424, 426 (1989). All of these cases, however, involve waiver of a jury trial on all issues in favor of a bench trial. Defendant argues that stipulation to the presence of an element of the offense is a waiver of jury trial on that element, and that waiver as to an element of the offense must be treated the same as a waiver with respect to all elements. To reach this conclusion, he relies mainly on the reasoning of this Court in State v. Machia, 155 Vt. 192, 583 A.2d 556 (1990), where we concluded that consent to an eleven-person jury did not have to meet the procedural requirements of a jury trial waiver. Id. at 195-96, 583 A.2d at 558.

Machia is of little help to defendant's position. We summarized the reasoning as follows:

[W]e believe that the decision to stipulate to an eleven-person jury is a "tactical" or "strategic" one that can be made by counsel with the defendant's implied consent. Here, defense counsel's on-the-record oral stipulation to an eleven-member jury, confirmed in defendant's presence, did not deprive defendant of his constitutional right to trial by jury.

Id. at 199, 583 A.2d at 560. Nothing in the opinion suggests that because a decision to stipulate to an eleven-person jury was a tactical decision, a decision not to contest an element of an offense is necessarily a waiver of trial by jury.

We thus decline to adopt defendant's position. All issues contested by defendant were determined by the jury, and it ultimately determined defendant's guilt or innocence. Moreover, acceptance of defendant's argument would put us on a very slippery slope where any defect in the jury's consideration would be considered a waiver of a jury trial, valid only if expressly agreed to by the defendant.

Even if we were inclined to accept defendant's argument that some kind of personal waiver by defendant is required, we would accept the kind of implied waiver we found effective in Machia, where defense counsel stipulated to an eleven-person jury on the record in the defendant's presence. The waiver involved is that of the right to participate in specific trial events, and not a waiver of the right to trial by jury. See In re Cardinal, 162 Vt. 418, 419, 649 A.2d 227, 229 (1994). We have no difficulty in finding a waiver on this record. The stipulation to the elements of the offense was given in open court with defendant present. To the extent defendant contested the stipulation, it was his obligation to speak at that time.

Alternatively, defendant argues that, despite the lack of preservation, the trial court's failure to charge the jury that it must determine whether the State has established the disputed elements was plain error that warrants reversal of his conviction. Defendant finds some support for his position in State v. Camley, 140 Vt. 483, 438 A.2d 1131 (1981), and State v. Noyes, 147 Vt. 426, 519 A.2d 1152 (1986). In Camley, defense counsel focused on whether defendant killed the victim in self-defense or in the heat of passion, and conceded the killing. As a result, the court failed to charge the jury that it could acquit the defendant of killing the victim, an omission the defendant raised as plain error on appeal. We found the error struck "at fundamental rights" and reversed for a new trial. Camley, 140 Vt. at 490, 438 A.2d at 1135.

In Noyes, a DUI case, the court charged the jury that the defendant had admitted that he was operating a motor vehicle on a public highway at the time of the alleged offense. On appeal, the defendant claimed this charge was error despite his failure to object to the charge below. We held that the jury charge was plain error. Noyes, 147 Vt. at 429, 519 A.2d at 1154.

Since Noyes we have held that it is "bad policy to create a category of errors which are plain per se," State v. Roy, 151 Vt. 17, 23, 557 A.2d 884, 888 (1989), and applied this policy to other areas where, in the past, we have not required preservation. See also State v. Davis, 157 Vt. 506, 509, 601 A.2d 1381, 1383 (1991) (Miranda waiver); State v. Holcomb, 156 Vt. 251, 254, 590 A.2d 894, 895-96 (1991) (duplicity claim). We see no reason why we should adopt a different approach in this case, and we therefore decline to find plain error per se for concessions to elements of an offense. See State v. Pelican, 160 Vt. 536, 545, 632 A.2d 24, 29 (1993) (Morse, J., concurring).

Instead, in order to hold that there was plain error in this case, we must find that "the trial court's error [is] so grave and serious as to strike to the very heart of defendant's constitutional rights or adversely affect the fair administration of justice." State v. Bradley, 164 Vt. 346, ----, 670 A.2d 811, 813 (1995). Such errors occur "only in rare and extraordinary cases." State v. Plante, 164 Vt. 350, ----, 668 A.2d 674, 678 (1995). A key factor in the plain error analysis is whether defendant was prejudiced. See State v. Weeks, 160 Vt. 393, 400, 628 A.2d 1262, 1266 (1993).

There is no conceivable prejudice to defendant from the asserted error. The conceded elements were incontestable; there is no substantial chance the jury would have found the elements had not been proven. Moreover, insisting that the jury should determine whether or not defend...