State v. Muscari, 00-562.

• Citation: 807 A.2d 407
• Decision Date: 05 July 2002
• Docket Number: No. 00-562.,00-562.
• Parties: STATE of Vermont v. Vincent MUSCARI.
• Court: United States State Supreme Court of Vermont

807 A.2d 407

STATE of Vermont v. Vincent MUSCARI.

No. 00-562.

Supreme Court of Vermont.

July 5, 2002.

Dan M. Davis, Windham County State's Attorney, and Christopher C. Moll and Tracy Kelly Shriver, Deputy State's Attorneys, Brattleboro, for Plaintiff-Appellee.

William E. Kraham, Brattleboro, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

JOHNSON, J.

Defendant appeals his convictions for unlawful trespass, first degree aggravated domestic assault, simple assault by mutual combat, and unlawful mischief. Defendant contends the trial court erred by: (1) permitting a charge of aggravated domestic assault; (2) admitting the tape of the victim's 911 call in evidence; (3) erroneously instructing the jury on serious bodily injury and the relevance of expert medical testimony; (4) considering defendant's silence to the presentence investigator at sentencing; (5) denying him equal access to the crime scene; (6) engaging in experimental trial procedures; (7) denying him the right of confrontation by limiting the scope of cross-examination of the victim; and (8) improperly admitting evidence of prior bad acts. We affirm.

On the evening of February 5, 1999 defendant let himself into the Westminister, Vermont home of his former girlfriend, Ellyn Benson, and went up the stairs to her bedroom where he discovered Ms. Benson with her boyfriend, Chad Simpson. Defendant claimed that he and Ms. Benson had scheduled a date to have dinner at her residence that night. Defendant and Ms. Benson came face to face at Ms. Benson's bedroom door and began to argue. When defendant pushed Ms. Benson down to the floor, Mr. Simpson intervened, and the two men fought. After Mr. Simpson and defendant temporarily stopped fighting, all three individuals went downstairs to the living room and kitchen. While it is disputed whether defendant accompanied or dragged Ms. Benson down the stairs, the evidence at trial indicated that shortly after Ms. Benson arrived downstairs, defendant punched her in the face. After being hit, Ms. Benson tried to defuse the situation by urging Mr. Simpson to leave. With Mr. Simpson's departure, however, defendant's violent behavior escalated; he smashed Ms. Benson's plates and other breakables, threw them into the air, and hit Ms. Benson in the face with at least one broken piece of dishware. Defendant then punched Ms. Benson in the face again.

Ms. Benson ran outside to escape. Mr. Simpson, who was in the process of leaving, saw that Ms. Benson was bleeding from her cheek and returned to the scene to physically engage defendant. As the two men fought, Ms. Benson called 911. She spoke with the 911 operator, left the telephone line open, and went back outside. Defendant fled the scene before the police arrived. Several hours later, from the house of his attorney, defendant surrendered himself to the police.

The 911 response team administered first aid and photographed Ms. Benson's injuries before taking her to the hospital for further treatment. The police took photographs of the crime scene and interviewed Ms. Benson the night of February 5th, and again the following day. Although the defense wanted to take its own photographs, Ms. Benson would not allow them into her home. Ms. Benson's injuries as documented by the police photographs and affidavit, and by Ms. Benson's testimony at trial, consisted of a black eye, a three-centimeter long and one-centimeter deep laceration on her face that required stitches, an additional small laceration to the forehead, numerous small bruises and superficial abrasions, and back pain. The larger laceration has developed into a permanent scar and the back pain continues.

Defendant was charged with unlawful trespass, first degree aggravated domestic assault, simple assault by mutual combat, and unlawful mischief. After a three-day trial, on June 30, 2000, a jury convicted defendant of all counts. Defendant appeals, alleging several different errors at trial.

Defendant's first claim of error is that there was insufficient evidence to support a finding of serious bodily injury, and thus the charge of aggravated assault. Defendant brought motions for judgment of acquittal under V.R.Cr.P. 29 at the close of the State's case and after trial. The court denied both motions. On review of a court's denial of a motion for judgment of acquittal we must consider "whether the evidence, when viewed in the light most favorable to the State and excluding any modifying evidence, fairly and reasonably tends to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt." State v. Couture, 169 Vt. 222, 226, 734 A.2d 524, 527 (1999) (internal quotations omitted). We conclude that there was sufficient evidence that the victim suffered serious bodily injury.

Title 13 V.S.A. § 1021(2) defines "serious bodily injury" as "bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health, or substantial disfigurement." The term "substantial loss" replaced "serious, permanent disfigurement, or protracted loss" and "substantial disfigurement" was added when the Legislature amended the aggravated assault statute in 1993. Compare 1993, No. 95, § 3, with 1971, No. 222 (Adj.Sess.), § 1. Our primary objective in construing a statute is to give effect to the legislative intent. State v. Read, 165 Vt. 141, 147, 680 A.2d 944, 948 (1996). We deduce from the amendment that the Legislature intended that a conviction for aggravated assault can now be sustained on evidence of "substantial disfigurement" that need not be "serious, permanent disfigurement." See Jones v. Dep't of Employment Sec., 140 Vt. 552, 555, 442 A.2d 463, 464 (1982) (amendment of statute shows legislative intent to change effect of existing law).

In this case, the evidence showed that the victim sustained a black eye, numerous bruises and abrasions, injury to her back, and two facial lacerations—one resulting in a permanent scar. Although the permanent facial scar was not perceivable by the jury from across the courtroom, and the other injuries were temporary, the evidence was sufficient for the jury to conclude the victim sustained "substantial disfigurement." Neither visibility from a distance nor permanency are requisite to substantial disfigurement. See State v. Carlson, 369 N.W.2d 326, 327-28 (Minn.Ct.App.1985) (two black eyes, facial bruises, bruises on neck and head, and scratches on arm were sufficient for jury to conclude victim sustained substantial bodily harm); State v. Ashcraft, 71 Wash. App. 444, 859 P.2d 60, 66 (1993) (bruises and bite mark show "temporary but substantial disfigurement"); see also State v. Jennings, No. CX-96-2093, 1997 WL 292162, at *1 (Minn. June 3, 1997) (holding that victim suffered "substantial bodily harm" from "temporary but substantial disfigurement" resulting from "swelling and a cut in the area of the right eye that required six stitches").

Defendant further argues that the jury's determination of substantial disfigurement should have been supported by expert medical testimony. Whether a proof of an element of a crime meets the standard of "substantial," however, is not a medical determination but is a question of fact for the jury. State v. Blakeney, 137 Vt. 495, 500, 408 A.2d 636, 640 (1979). Indeed, the jury is free to make this determination even in the absence of medical testimony. See State v. Sorrell, 152 Vt. 543, 547, 568 A.2d 376, 378 (1989) (holding that medical testimony was not necessary for a jury to determine whether the defendant's choking of the victim put her in "substantial danger of death"). In this case both the emergency room doctor and the victim's personal physician testified to the extent of victim's injuries. The jury viewed the scar and was shown photographs of the temporary injuries. This evidence provided ample support for the jury's guilty verdict on the aggravated assault charge. That the physicians chose not to characterize the disfiguring injuries as "substantial" is of no consequence.

Defendant's second claim is that the trial court erred in admitting a recording of the 911 telephone call the victim placed during the incident. Defendant claims that the tape, which was played for the jury several times, was not properly authenticated, was not the best evidence, and contained inadmissible hearsay evidence. A trial court's evidentiary rulings are left to its sound discretion, and we will not reverse absent an abuse of that discretion. State v. Corliss, 168 Vt. 333, 337, 721 A.2d 438, 442 (1998).

A tape recording is authenticated for admissibility "by evidence sufficient to support a finding that the matter in question is what its proponent claims." V.R.E. 901(a). In this case, the State could authenticate the recording by "[i]dentification of a voice, ... by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker." Id. 901(b)(5). "The identification and authentication of the tapes is an issue to be ruled upon by the trial court on the basis of relevance and reasonable certainty." State v. Mecier, 138 Vt. 149, 152, 412 A.2d 291, 294 (1980). At trial, the court held a foundational hearing out of the presence of the jury in which the victim identified her own voice on the 911 tape. The court ruled that this identification was sufficient to authenticate the tapes.

In reviewing the trial court's decision, we note that the test for authenticating evidence is not a demanding one, and that some questions regarding a piece of evidence's origin or chain of custody are permissible. "The test for a foundation for admissibility is not absolute certainty. It only requires that the evidence be of demonstrable relevance and of sufficient meaningful substance to be justifiably relied upon as a fact by the jury, rather than an insubstantial...