State v. Prime, 244-78
| Decision Date | 05 June 1979 |
| Docket Number | No. 244-78,244-78 |
| Citation | 403 A.2d 270,137 Vt. 340 |
| Parties | STATE of Vermont v. Richard F. PRIME. |
| Court | Vermont Supreme Court |
Dale O. Gray, Caledonia County State's Atty., and Christopher B. Leopold, Deputy State's Atty., St. Johnsbury, for plaintiff.
James L. Morse, Defender Gen., and William A. Nelson, Appellate Defender, Montpelier, for defendant.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
The defendant was charged with the crimes of sexual assault (two counts) and simple assault. He was found guilty of all counts by a jury, and he timely appeals from the judgment thereon. We reverse.
The defendant contends that the State failed to prove Count 1 of the information. That count charged a violation of 13 V.S.A. § 3252(1)(A), which makes it a crime to compel another person, not a spouse, to participate in a sexual act without his consent. A sexual act is defined, Inter alia, as "conduct between persons consisting of contact between . . . the penis and the anus." 13 V.S.A. § 3251(1). At the close of the State's case, the defendant raised the issue by motion for a judgment of acquittal under V.R.Cr.P. 29. The issue on such a motion is "whether, taking the evidence in the light most favorable to the State and excluding modifying evidence, the State has introduced evidence fairly and reasonably tending to show the defendant guilty beyond a reasonable doubt." State v. Eaton, 134 Vt. 205, 206, 356 A.2d 504, 505 (1976). The defendant claims the denial of his motion was error.
The State contends that the element of contact was established, albeit in vulgar slang with which the record is replete. It further argues that the imprecision in the description, if any, is attributable to the defendant's limited background. On both points, we disagree. The record does not establish contact, nor are we convinced that the vagueness is due to the defendant's underdeveloped vocabulary. The streets do not lack anatomical synonyms for anus; the words were there, if only the prosecutor's questions had elicited them.
The motion for judgment of acquittal should have been granted. On this count we reverse and order judgment for the defendant.
After the jury was empanelled but before the voir dire and the start of the trial, the State's Attorney informed the court that, without his knowledge, a petition to place his name on the ballot had been circulated among the jury panel. Four jurors had signed. The court notified defense counsel of the petition. It offered to allow counsel to cross-examine the jurors or to discharge the panel and begin anew. Counsel questioned the sheriff who had circulated the petition and waived any claim of bias.
The defendant was neither present when the court was advised of the petition nor told by his attorney of its existence. In fact, he first learned of the incident and of his counsel's waiver when he read the transcript while preparing this appeal. He now claims that he was denied his constitutional right to a fair and impartial jury as guaranteed by the Sixth Amendment.
The State contends that while counsel's waiver without consultation is questionable, unless the defendant shows prejudice, his constitutional right has not been violated. It further asserts that no showing of prejudice has been made here. We agree with the defendant.
Reversible error in this regard does not depend on a showing of prejudice in an individual case.
No right is more fundamental to a...
To continue reading
Request your trial
-
State v. Machia
...right to a jury trial under the Vermont Constitution. Defendant urges us to analogize the instant case to State v. Prime, 137 Vt. 340, 342-43, 403 A.2d 270, 272 (1979), where we held that a defendant's right to a jury free from the taint of any suspicion of extraneous influences could only ......
-
State v. Bailey
...or even suspected any jury bias during his trial. The record is devoid of "any suspicion of extraneous influences." State v. Prime, 137 Vt. 340, 343, 403 A.2d 270, 272 (1979) (quoting State v. Woodard, supra, 134 Vt. at 158, 353 A.2d at 323-24). The facts of this case, therefore, are unlike......
-
State v. Lawton, 93-098
...a child's, penis. Defendant relies on two cases where the court found insufficient evidence of sexual assault. See State v. Prime, 137 Vt. 340, 342, 403 A.2d 270, 271 (1979) (element of contact not established); State v. O'Neill, 134 N.H. 182, 589 A.2d 999, 1002-03 (1991) (testimony that de......
-
State v. Jones, 92-521
...of contact between the penis and the vulva. See 13 V.S.A. § 3251(1) (defining sexual act). Defendant relies on State v. Prime, 137 Vt. 340, 342, 403 A.2d 270, 271 (1979), in which we held that a judgment of acquittal should have been granted because the "record [did] not establish contact, ......