State v. Maunsell

• Decision Date: 24 August 1999
• Docket Number: No. 98-131.,98-131.
• Citation: 743 A.2d 580
• Parties: STATE of Vermont v. David MAUNSELL.
• Court: Vermont Supreme Court

743 A.2d 580

STATE of Vermont v. David MAUNSELL.

No. 98-131.

Supreme Court of Vermont.

August 24, 1999.

Motion for Reargument Denied October 7, 1999.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and GIBSON, Associate Justice (Ret.) Specially Assigned.

ENTRY ORDER

Defendant appeals from a judgment of the Chittenden District Court entered on a jury verdict finding him guilty of lewd and lascivious behavior in violation of 13 V.S.A. § 2601. On appeal, he raises a variety of issues, the most significant of which involve the jury instructions, the propriety of considering his lack of remorse in passing sentence and matters relating to a rescinded plea agreement. We modify the judgment to delete certain conditions of defendant's probation and affirm the judgment as modified.

The trial court denied defendant's motion for a judgment of acquittal following the presentation of the case against him. Accordingly, "we must consider whether the evidence, taken in the light most favorable to the State and excluding the modifying evidence, is sufficient to fairly and reasonably support a finding of guilt beyond a reasonable doubt." State v. Devine, 168 Vt. 566, 566, 719 A.2d 861, 862 (1998). Viewed through this lens, the relevant facts are easily summarized. On the morning of July 26, 1996, the complaining witness was seated in the second-floor reading room of the library of St. Michael's College in Colchester when she observed defendant, less than eight feet away, massaging his genitals through his pants. Defendant, who testified at trial, stated that he had engaged in this behavior because he was "day dreaming," having considered the sight of the victim seated nearby to be "attractive" and "erotic."

On August 18, 1997, defendant appeared in open court to indicate he had reached a plea agreement with the State. Under that agreement, the State would have reduced its charge to that of a prohibited act of lewdness in violation of 13 V.S.A. § 2632(a)(8). The court accepted the change of plea after making the relevant inquiries as to whether defendant was acting on a knowing and voluntary basis, and entered judgment on it. However, before the matter came up for sentencing approximately six weeks later, defendant moved for a new plea proceeding alleging that the judge who accepted the plea had acted unethically. At the sentencing hearing, defendant indicated that he did not want to go forward with the agreement. Counsel made clear his client was acting against his advice; defendant noted that five previous attorneys had withdrawn as his counsel in the case.¹ The court permitted defendant to withdraw his plea under V.R.Cr.P. 32(d) and carefully explained to defendant that, as a result, the plea agreement had been rescinded and the original charge of violating 13 V.S.A. § 2601 would proceed to trial, which it did on January 6, 1998. The jury returned a verdict of guilty, and the court sentenced defendant to a suspended term of imprisonment of two-to-five years plus probation and fifty hours of community service. This appeal followed.

Defendant first challenges the court's instructions to the jury concerning the mens rea element of the charged offense. The statute prohibits "open and gross lewdness and lascivious behavior." 13 V.S.A. § 2601. Concerning this requirement of "open" conduct, defendant requested an instruction that, in order to find him guilty, the jury had to find that he intended to be seen when he fondled himself. Defendant now concedes the "abstract correctness" of the instructions as actually given but contends the court did not adequately distinguish between intent to commit the act and intent that the act be seen by others. He argues that the jury should have been instructed that if it determined he acted in reckless disregard of the possibility he would be seen, a verdict of not guilty would be required.

We discern no reversible error. We believe the instructions adequately allowed the jury to consider the defense theory of the case so it had to "resolve its truth or falsity by their verdict." State v. Brisson, 119 Vt. 48, 53, 117 A.2d 255, 257-58 (1955). Moreover, defendant's appeal argument goes beyond what the law required in this instance. In State v. Grenier we rejected a similar argument, reviewing for plain error because the question had not been adequately preserved at trial. 158 Vt. 153, 156, 605 A.2d 853, 855 (1992). However, the reasoning we adopted in Grenier is dispositive: "If the Legislature had intended to include specific intent" — that, is, an intent to achieve a precise harm or result — as an element of the crime set out in § 2601, "it presumably would have done so," as it did in 13 V.S.A. § 2602 when enjoining lewd or lascivious conduct with a child. Id. (noting that court reads scienter element into statute only when necessary to make it effective). Further, defendant bargained away at least part of the position he now maintains in return for the State's agreement not to offer certain evidence, and his post-charge objection, to the extent shown by the transcript, also appears not to fully raise his appeal argument.

Defendant next invokes our decision in State v. Loveland, 165 Vt. 418, 684 A.2d 272 (1996), to contend that when the court imposed sentence it improperly took into account his unwillingness to concede the illegality of his behavior without offering him immunity for any statements he might make at sentencing. Loveland concerns a specific problem: the convicted sex offender who testifies at trial that he did not commit the act in question but who risks an enhanced sentence for lack of remorse absent an acceptance of responsibility during the sentencing phase of the proceedings. See id. at 422-23, 684 A.2d at 276. The situation in the instant case is easily distinguishable because defendant here never denied he committed the acts charged by the State. When the need to accept responsibility at sentencing does not expose the defendant to possible perjury charges arising out of his trial testimony, or compel a waiver of the privilege against self-incrimination, Loveland is not implicated. See State v. Gorbea, 169 Vt. ___, ___, 726 A.2d 68, 71 (1999) (affirming general rule that sentencing court may take defendant's nonacceptance of responsibility into account). Defendant's argument over the law did not create an unfair restriction on his ability to seek a fair sentence.

Defendant objects to the imposition of two probation conditions. The trial court's order placing defendant on probation requires him, inter alia, to submit to alcosensor testing and urinalysis when required by his probation officer or the officer's authorized representative. The State has explicitly declined to oppose their deletion, and we therefore modify the judgment to delete these two conditions of defendant's probation.

All of the foregoing issues were placed before the Court via the brief filed on defendant's behalf by his appellate counsel. Defendant also appears pro se to raise additional issues, to which we now turn.

The first argument in defendant's brief is that the initial judge erred in denying a motion to dismiss for lack of a prima facie case. We must affirm if, viewing the record in the light most favorable to the State and excluding modifying evidence, we can determine that the State produced evidence fairly and reasonably tending to show the defendant guilty beyond a reasonable doubt. See State v. Dixon, 169 Vt. ___, ___, 725 A.2d 920, 922 (1999). As defendant's main brief emphasizes, the only real dispute was whether defendant had the mental state required for the crime. We conclude that the State made the requisite prima facie showing as to defendant's mental state, which "may be inferred from the facts and circumstances" surrounding the act in question. State v. Hatcher, 167 Vt. 338, 344, 706 A.2d 429, 433 (1997). The evidence does not become inadequate because the State had been willing to reduce the charges as part of a plea bargain which defendant rejected. As part of this argument, defendant challenges the trial judge's decision to allow the prosecution to require that defendant demonstrate to the jury how and where he...