State v. Searles

• Decision Date: 15 January 1993
• Docket Number: No. 91-038,91-038
• Citation: 621 A.2d 1281,159 Vt. 525
• Parties: STATE of Vermont v. Eric R. SEARLES.
• Court: Vermont Supreme Court

Page 1281

621 A.2d 1281

159 Vt. 525

STATE of Vermont v. Eric R. SEARLES.

No. 91-038.

Supreme Court of Vermont.

Jan. 15, 1993.

Jeffrey L. Amestoy, Atty. Gen., and David Tartter, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Charles Martin and Helene Quinn, Law Clerk on the brief, of Martin & Paolini and Phyllis Boltax, Barre, for defendant-appellant.

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

MORSE, Justice.

Defendant Eric Searles, following a jury trial, appeals his conviction under 13 V.S.A. § 3252(a)(3) for sexual assault of a fourteen-year-old female. Defendant contests his conviction on three grounds. He claims the court erred by (1) refusing to instruct the jury that knowledge of the victim's age was an element of the offense, or, if not an element, that a reasonable mistake about the victim's age was a defense to the crime; (2) admitting evidence of the use of force when force was not an element of the crime; and (3) denying a mistrial when media coverage of the trial was read by some jurors. We affirm.

In the evening of August 6, 1989, defendant, accompanied by two male friends, stopped in Barre and met the complainant, a female ten days shy of her fifteenth birthday. Although she knew none of the three, complainant joined them and indicated, when asked, the whereabouts of a party. Beer was purchased, and, unable to find the party, the group drove around making several stops. Eventually, defendant drove to Marshfield Dam with one of his friends and complainant. There, the men forced her to have sexual intercourse with them. She was then driven to the home of her friends in Randolph. During the ride, she wrote the car's license number on her arm with a pen found on the dashboard. The next morning, complainant reported the incident to the police.

I.

13 V.S.A. § 3252(a)(3) defines sexual assault of a minor as "a sexual act with another person and ... [t]he other person is under the age of 16, except where the persons are married to each other and the sexual act is consensual." Defendant argues that knowledge that the "other person is under the age of 16" is an element of the offense.

Although defendant captions his first argument with a heading that states that his "constitutional right to due process" was violated by failure of the jury to consider the reasonableness of his knowledge of the victim's age, he does not brief either federal or state constitutional law. Rather, defendant analogizes the knowledge requirement for this offense to cases where we implied a mental element even though the statute was silent. See State v. Day, 150 Vt. 119, 122, 549 A.2d 1061, 1064 (1988) (operating a motor vehicle without owner's consent--knowledge of lack of consent); State v. Audette, 149 Vt. 218, 222, 543 A.2d 1315, 1317 (1988) (kidnapping--knowledge of restraint); State v. Hanson, 141 Vt. 228, 232, 446 A.2d 372, 374 (1982) (larceny--intent to permanently deprive owner of property); State v. Graves, 140 Vt. 202, 205, 436 A.2d 755, 757 (1981) (uttering a false prescription--knowledge of falsity); State v. Sidway, 139 Vt. 480, 484, 431 A.2d 1237, 1239 (1981) ("hit and run"--knowledge of the accident).

Statutory rape, the common-law crime of having sexual intercourse with a female under a certain age, has traditionally been considered a strict liability offense, where "mistake as to the age of an underage participant has been accorded no defensive significance." Model Penal Code § 213.6 comment 2 (1980). Vermont has neither statutorily deviated from the traditional rule, nor done so by judicial decision. See State v. Messier, 145 Vt. 622, 627-28, 497 A.2d 740, 743 (1985) (defining crimes is generally a task for the legislature).

Silence about a mental element in the statutory definition of a crime requires this Court to determine whether the Legislature nevertheless intended to include one. State v. Roy, 151 Vt. 17, 25, 557 A.2d 884, 889 (1989); Audette, 149 Vt. at 221, 543 A.2d at 1316-17. This Court will not imply a mental requirement, however, "when the statutory language cuts against such a result and the policy behind the statute would be defeated." Roy, 151 Vt. at 25, 557 A.2d at 889. We have previously stated the criteria used to decide whether a statute was intended to impose strict liability. As we stated in Roy:

In addition to the statutory language, the factors we must look to in order to decide whether the Legislature intended to impose liability on a strict liability basis are: The severity of the punishment; the seriousness of the harm to the public; the defendant's opportunity to ascertain the true facts; the difficulty of prosecution if intent is required; and the number of prosecutions expected.

Id. at 25, 557 A.2d at 889-90.

While the severity of punishment for sexual assault weighs against strict liability, the other factors predominate in favor of concluding that knowledge of the victim being under age is not a necessary element. Vermont law reflects our enhanced concern for the protection and well-being of minors and the gravity we attach to crimes involving the exploitation of minors. See, e.g., 13 V.S.A. § 1304 (cruelty to children under ten by one over sixteen); 33 V.S.A. §§ 4911-4920 (reporting abuse of children); 13 V.S.A. § 2804b (displaying obscene materials to minors); 13 V.S.A. §§ 2821-2826 (sexual exploitation of children). Moreover, review of the legislative history of the statute convinces us that a requirement of knowledge that the victim is under age should not be implied.

Before becoming law, 13 V.S.A. § 3252(a)(3) contained language requiring actual or constructive knowledge of age ("[k]nows or has reason to know that the other person is under the age of 16"). House Journal, 1977, at 545-46. This language was deleted in a committee of conference. The Legislature, on the other hand, retained knowledge as an element when "deadly force" is used in aggravated sexual assault. 13 V.S.A. § 3253(a)(7). "Deadly force" is defined as "physical force which a person uses with the intent of causing, or which the person knows or should have known would create a substantial risk of causing, death or serious bodily injury." Id. § 3251(7) (emphasis added). The Legislature could have included similar language pertaining to knowledge of the minor's age in § 3252(a)(3), but declined to do so. See State v. Racine, 133 Vt. 111, 114, 329 A.2d 651, 653-54 (1974) (presumption that all language is inserted in statute advisedly).

Alternatively, defendant contends that a reasonable mistake about the victim's age should be implied as a defense. In contrast to the legislative scheme for sexual assault, the statutory framework dealing with sexual exploitation of children explicitly allows an affirmative defense to using a child in a sexual performance that the "defendant, in good faith, had a reasonable and factual basis to conclude that the child had in fact attained the age of 16." 13 V.S.A. § 2822(b). Again, we presume that like language would have been included in § 3252(a)(3) had the Legislature intended the defense to be available.

We decline to imply knowledge of age as an element of, or reasonable mistake of age as a defense to, sexual assault of a minor.

II.

Because the element of force is absent from sexual assault of a minor and the crime is established even though the minor consents to sexual relations, defendant claims it was error to admit evidence that defendant forced the victim to have sex. Before trial, defendant moved that the evidence of force be excluded as irrelevant under V.R.E. 401 and, if relevant, because "its probative value [was] substantially outweighed by the danger of unfair prejudice." V.R.E. 403.

We cannot conclude that the admission of the evidence of force was error. It was relevant evidence. See State v....