State v. Messier

Decision Date19 July 1985
Docket NumberNo. 83-340,83-340
Citation499 A.2d 32,146 Vt. 145
CourtVermont Supreme Court
PartiesSTATE of Vermont v. Larry MESSIER.

Helen V. Torino, Franklin County State's Atty., St. Albans, for plaintiff-appellee.

Andrew B. Crane, Defender Gen., and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.


PECK, Justice.

Larry Messier (defendant) appeals his conviction, after jury trial, for two counts of sexual assault and one count of lewd and lascivious conduct. All three counts involved a child under the age of sixteen, in violation of 13 V.S.A. §§ 3252(3) and 2602 respectively. We affirm.

The charges arose from an incident in which the defendant was observed engaging in various sexual acts with the witness's daughter, a minor under the age of 16 years. The victim apparently slept through the entire episode, leaving the father as the sole witness to the material acts. Upon conviction, defendant was sentenced to terms of from six to twelve years for each of the two counts of sexual assault and from two to four years for the lewd and lascivious conduct, all to be served concurrently. Because of the number of issues raised on appeal, the facts will be examined in greater detail as they become relevant to each of the claims of error addressed below.


At trial, the charges were supported mainly by the testimony of the father, who had secreted himself in the victim's bedroom in order to substantiate his suspicions of defendant's misconduct. He recounted how the defendant undressed the victim while she was asleep, partially undressed himself, and performed various lewd acts upon her.

Defendant concedes that these acts amounted to lewd and lascivious conduct. However, he maintains that the evidence was insufficient to support the charges of sexual assault. He argues that none of the sexual contacts contemplated by 13 V.S.A. § 3251 1 were established. The merits of this contention hinge on the proper definition of the term "vulva."

Prior to its final charge to the jury, the court considered an instruction requested by the State that included a broader definition of "vulva" than given to the jury during pretrial instructions. Defendant proposed no instructions of his own; instead, he urged the court to repeat its earlier instruction. However, the court chose to follow a more inclusive definition derived from a standard text on anatomy, 2 similar to that requested by the State. Defendant contends that the court's failure to construe the statute narrowly in his favor was reversible error. We disagree.

As long as the court fulfills its duty to define the essential issues of fact and instruct on the applicable law, it is free to choose its own language. 3 State v. Girouard, 135 Vt. 123, 139-40, 373 A.2d 836, 847 (1977); State v. Audette, 128 Vt. 374, 378, 264 A.2d 786, 789 (1970). When dealing with statutory language, the court should avoid overdefinition, but may, in its discretion, enlarge upon a term though its meaning may be commonly known. State v. Girouard, supra, 135 Vt. at 140, 373 A.2d at 847; State v. Audette, supra, 128 Vt. at 378-79, 264 A.2d at 789.

Whether or not the term "vulva" is so well established in the common parlance as to obviate any need for elaboration is open to question. Nevertheless, in discussing the purpose of 13 V.S.A. § 3252, Chief Justice (then Justice) Billings, writing for the Court stated:

[T]he clear legislative intent behind the sexual assault statute is that the criminal nature of the conduct stems from the aggressive violation of the sanctity of the human body and the consequent destruction of the victim's self-worth. See Journal of the House 548 (1977). Given this intent it is incumbent upon this Court to avoid a construction ... which would increase the quantum of proof necessary to establish the physical act of violation addressed by the statute.

State v. Bourn, 139 Vt. 14, 17, 421 A.2d 1281, 1282 (1980).

In giving effect to this expression of the legislative purpose, we find that the broader definition employed by the trial court in its charge to the jury not only conformed to the standard medically recognized definitions, but its use within the context of the charge was not an abuse of discretion. There was no error.

Given the physical area circumscribed by the court's instruction to the jury, we must now determine whether the evidence, when viewed in the light most favorable to the State, was sufficient to establish the element of "contact," 13 V.S.A. § 3251, in the mind of a reasonable juror beyond a reasonable doubt. State v. Fuller, 144 Vt. 485, 487, 479 A.2d 173, 174 (1984) (quoting State v. Derouchie, 140 Vt. 437, 445, 440 A.2d 146, 150 (1981)).

"Contact," as applied to the sexual assault statutes, is defined as "mere touching, however slight." State v. Bourn, supra, 139 Vt. at 16-17, 421 A.2d at 1282. It is not necessary to repeat here the language employed by the father in his testimony; it was sufficient nevertheless to support a finding of contact in accordance with the charge embodied in the second count of the State's three count information.

Turning to the first count, charging that defendant's proscribed acts included contact between his sex organ and the vulva of the child, the position of the bodies obscured the witness's observations, and the witness's testimony was only circumstantial evidence of contact. Nevertheless, we hold that the State has satisfied its burden to prove its case.

Defendant suggests several possibilities falling short of the required contact. We have held, however, that guilt in a criminal case may be proved by circumstantial evidence alone, if it is proper and sufficient in itself. State v. Kerr, 143 Vt. 597, 603, 470 A.2d 670, 673 (1983) (citing State v. Colby, 140 Vt. 638, 641-42, 443 A.2d 456, 457 (1982). The State is not required to exclude every reasonable hypothesis of innocence in proving its case. State v. Derouchie, supra, 140 Vt. at 445, 440 A.2d at 149-50. The only test the State must satisfy, whether the evidence is direct or circumstantial, is proof beyond a reasonable doubt. Id.; State v. Kerr, supra. "The trier of fact is not required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt." State v. Veilleux, 140 Vt. 517, 522, 439 A.2d 277, 280 (1981).

In the present case, the State was not required to prove penetration; it needed only to show contact within a defined area of the pubic region. Given the relative positions of the bodies, as described by the father, the State has satisfied its burden, even though the evidence was circumstantial and there was no medical confirmation of such contact.


Defendant next raises a series of issues that arose from pretrial discovery. Three of these issues revolve around the State's attempt to obtain nontestimonial identification evidence from the defendant. A fourth issue involves a condition of defendant's release, imposed by the superior court, that restricted his attorney's access to the State's witnesses. We will address the former issues first.

Nearly two weeks after the State filed its information, it requested an order allowing it to acquire nontestimonial identification evidence; in this case, "body samples" from defendant; more specifically, samples of defendant's saliva, blood, and pubic and head hair. The order was granted ex parte. Shortly before the samples were to be taken, defendant moved to modify the court's order to allow, inter alia, the presence of a defense investigator and attorney at the sampling process. Defendant also moved to quash the order on due process grounds. Due to an apparent lapse of communication by the court, notice of a stay of the procedure pending resolution of defendant's motions was not communicated to the State until after the samples were taken. Defendant then attempted to obtain similar samples from the male members of the victim's family. Although this request was denied, he prevailed on a motion to suppress the State's samples.

Comparison tests of the suppressed hair samples yielded negative results; they did not match any of the samples taken from the scene of the offenses or from the clothing of the victim. Later, defendant proposed to utilize these negative results in his case-in- chief. The court cautioned him that doing so would open the door to all the evidence taken in the illegal search, thus enabling the State to introduce potentially incriminating evidence produced from defendant's blood sample. Defendant accepted the risk and, over his objection, the State was then allowed to present the blood sample evidence. Defendant claims error in the denial of his request for blood and hair samples of members of the victim's family, the admission of the State's evidence of the previously suppressed blood sample of the defendant, and the subsequent admission of the bloodtest results into evidence.

The body samples taken from defendant by the police pursuant to the court's nontestimonial identification order were suppressed on constitutional grounds. The State does not challenge the merits of the suppression order. Therefore, the question to be resolved here is whether evidence, tainted by a constitutional infirmity, can be used by the State to rebut an inference, favorable to defendant, created by the latter's introduction of a part of the suppressed evidence during his case-in-chief. The trial judge took the position that the defendant opened the door to all of the suppressed evidence by selecting and introducing a part of that evidence. We agree and, for the reasons set forth below, we hold there was no error.

At the outset, we note that in State v. Kilborn, 143 Vt. 360, 466 A.2d 1175 (1983), we reached a different result, holding that statements by the defendant to the police, in violation of her Miranda rights,...

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  • State v. Bellanger
    • United States
    • Vermont Supreme Court
    • February 9, 2018
    ...jury would believe, and did not urge upon the jury the prosecutor's own view as to the guilt of the defendant"); State v. Messier, 146 Vt. 145, 160, 499 A.2d 32, 43 (1985) (holding prosecutor's closing not plain error where prosecutor made six statements framed as his opinion, which "if tec......
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    • July 1, 1994 a criminal case may be proved by circumstantial evidence alone, if it is proper and sufficient in itself." State v. Messier, 146 Vt. 145, 150, 499 A.2d 32, 37 (1985). When the evidence is viewed in the light most favorable to the State, it fairly and reasonably tended to show that defend......
  • State v. Bellanger
    • United States
    • Vermont Supreme Court
    • February 9, 2018
    ...jury would believe, and did not urge upon the jury the prosecutor's own view as to the guilt of the defendant"); State v. Messier, 146 Vt. 145, 160, 499 A.2d 32, 43 (1985) (holding prosecutor's closing not plain error where prosecutor made six statements framed as his opinion, which "if tec......
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    • September 11, 1987
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  • Identification procedures
    • United States
    • James Publishing Practical Law Books Criminal Defense Tools and Techniques
    • March 30, 2017
    ...himself and the due process clause does not require the prosecution to help the defendant create exculpatory evidence); State v. Messier , 146 Vt. 145, 155, 499 A.2d 32, 40 (1985) (basing refusal on language of Vermont rule of criminal procedure).] PRACTICE TIP: You might counter the Braxto......

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