State v. Shaw, 86-033

• Citation: 542 A.2d 1106,149 Vt. 275
• Decision Date: 11 December 1987
• Docket Number: No. 86-033,86-033
• Court: United States State Supreme Court of Vermont
• Parties: STATE of Vermont v. Dana SHAW.

Page 1106

542 A.2d 1106

149 Vt. 275

STATE of Vermont v. Dana SHAW.

No. 86-033.

Supreme Court of Vermont.

Dec. 11, 1987.

Reargument Denied Jan. 22, 1988.

James P. Mongeon, Rutland County State's Atty., Rutland, for plaintiff-appellee.

David W. Curtis, Defender Gen., and Henry Hinton, Appellate Defender, Montpelier, for defendant-appellant.

Before ALLEN, C.J., PECK, J., and BARNEY, C.J. (Ret.), KEYSER, J. (Ret.) and COSTELLO, District Judge (Ret.), Specially Assigned.

ALLEN, Chief Justice.

Defendant appeals from convictions for sexual assault and felony trespass in violation of 13 V.S.A. §§ 3252(1)(C) and 3705(d). We affirm in part and reverse in part.

The complainant testified that defendant, an acquaintance, appeared uninvited at her apartment door at about 3 o'clock in the morning. He persuaded her to let him in. After using her bathroom, he emerged clad in a towel. She demanded that he get dressed and leave her apartment. He then threatened the complainant with a knife and sexually assaulted her twice. After the second assault, the complainant managed to dress and flee the apartment. She ran to her downstairs neighbors, the Kasubas, and pounded on their door asking for help. When they did not come immediately, she ran to the home of the Martoccis, other neighbors, unknown to her, and called for help. Her calls roused the Martoccis, and Mr. Martocci let her in. The complainant told the Martoccis she had been assaulted by a man with a knife. They called the police.

Mr. Kasuba had meanwhile searched for the complainant after hearing her cries, but could not find her. He found defendant in her apartment and, after speaking with him, called the police. Two police officers arrived and told defendant he had to leave the apartment. He complied with their request.

The Martoccis called the Kasubas, and Mr. Kasuba brought the complainant to his apartment, where she stayed with him and his wife. Mr. Kasuba returned to the complainant's apartment and discovered that defendant had returned. The police were called again and forcibly removed defendant.

Defendant claims the trial court erred by admitting evidence of and allowing the State's argument about changes in the complainant's personality following the sexual assault, by admitting statements made by the complainant to the Martoccis and the Kasubas, by intervening excessively to ask Donna Kasuba about the complainant's demeanor at the time she made her statements, by refusing to order the complainant to provide the defense with copies of the diary entries she made concerning the incident, and by failing to require the State to elect which entry of complainant's apartment was grounds for the trespass charge.

The State introduced testimony from two friends of the complainant that her behavior and personality had changed after the sexual assault. They testified that prior to November 2, 1984, she had been outgoing. After that date, she became withdrawn and depressed. The purpose of the testimony was to corroborate the complainant's version of the events and rebut the defendant's argument that the sexual assault did not occur. Defendant claims that the testimony was too remote to be relevant, and even if relevant too prejudicial. We find no error in the admission of the testimony.

In his claim that the evidence was too remote to be relevant, defendant argues that other events could have caused the changes. The witnesses compared the behavior of the complainant before the date of the rape with her behavior after it. The testimony did not, as defendant suggests, compare her behavior before the assault with her behavior at the time of trial some six months later. While the prosecutor in her summation compared the evidence of the complainant's behavior prior to the date of the sexual assault to her appearance and demeanor at the trial, no objection was made to these comparisons. Since the trial court did not have an opportunity to rule on the issue of the propriety of the prosecutor's comparison, we decline to address this issue on appeal. See Poulin v. Ford Motor Co., 147 Vt. 120, 125, 513 A.2d 1168, 1172 (1986) (citing Collette v. Bousley, 141 Vt. 373, 374, 449 A.2d 936, 937 (1982)).

Rulings on remoteness lie largely within the discretion of the trial judge. Bradley v. Buck, 131 Vt. 368, 371, 306 A.2d 98, 101 (1973) (citing Long v. Leonard, 113 Vt. 258, 261, 32 A.2d 679, 681 (1943)). When reviewing a discretionary ruling, this Court will only reverse when that discretion has been abused or withheld. State v. Picknell, 142 Vt. 215, 230, 454 A.2d 711, 718 (1982) (citations omitted). We find no abuse of discretion in admitting this evidence. This is not a case where the probative value of the evidence is so slight as to require exclusion as a matter of law. See Bradley, 131 Vt. at 371, 306 A.2d at 101. The evidence was probative of the fact of the occurrence of the sexual assault. See Simmons v. State, 504 N.E.2d 575, 581 (Ind.1987) (testimony of the victim's father and sister regarding her behavior after the rape was relevant in that it was "probative of the fact that she had been raped."); State v. Bishop, 240 Kan. 647, 659-60, 732 P.2d 765, 774 (1987) (rape victim's testimony that she had received counseling as a result of rape, introduced to show psychological as well as physical injury, was admissible as evidence of occurrence of the rape). Contrast State v. Kennison, No. 84-283, slip op. at 10 (Vt. Aug. 7, 1987) ("[The] statement made several weeks before this trial was simply too far removed in time and circumstances to the Greenwood assaults in September, 1983, to be admissible. The certain effect of such a statement would have been to confuse the issues and mislead the jury.").

Defendant also claims that, even if the testimony was relevant, the trial judge should have excluded it under V.R.E. 403 because its probative value was outweighed by danger of unfair prejudice and confusion. Whether an assault occurred was the key question in this trial, and evidence of changes in the complainant's personality was material on this issue.

Defendant claims that the testimony by complainant's friends could have misled the jury and encouraged convictions on the basis of sympathy. The trial judge instructed the jury that in rendering its decision they were not to be influenced by sympathy. Defendant has presented nothing to indicate that the jury disregarded the trial court's instructions. In the absence of any such indication, we presume the jury followed the trial court's instructions. "We must assume that the jury abided by the instructions of the court. There can be no assumption under our system of jurisprudence that the jury will disregard the instructions of the trial court." Lewis v. Gagne, 123 Vt. 217, 219, 185 A.2d 468, 470 (1962) (citations omitted). See State v. Covell, 142 Vt. 197, 201-02, 453 A.2d 1118, 1120 (1982) (the Court presumes the jury followed the curative instruction of the trial judge); State v. Fisher, 134 Vt. 339, 341, 360 A.2d 102, 104 (1976). The possible prejudice to defendant does not outweigh the substantial probative value of the testimony on the key issue, the fact of the sexual assault. Thus, defendant has not demonstrated prejudicial error in the trial court's admission of evidence of changes in the complainant's personality after the sexual assault. We find no abuse of discretion by the trial court in admitting this evidence.

Defendant next claims that the trial court erroneously admitted statements by the complainant to her neighbors as "excited utterance" exceptions to the hearsay rule. V.R.E. 803(2) allows admission of hearsay statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Defendant maintains that the statements to the Martoccis and the Kasubas do not qualify as exicted utterances for several reasons.

First, he claims that since the complainant told her neighbors she had been assaulted but did not tell the Martoccis that she had been sexually assaulted, and did not tell the Kasubas of the sexual assault until two or three hours after the event, this showed conscious reflection on her part. This state of mind, defendant argues, was inconsistent with being under the stress of an exciting event. Defendant cites State v. Solomon, 144 Vt. 269, 476 A.2d 122 (1984), to support his claim that telling only part of what happened is inconsistent with being in an excited condition. State v. Solomon is not on point. In that case, the declarant was watching a fire. In response to a statement by another bystander, and after pausing to consider, the declarant made a statement about the possible owner of a car seen at the scene of the fire. The Court found in that case that the statement did not relate to the exciting event, that the declarant paused before answering, and that she did not appear excited. Id. at 272-73, 476 A.2d at 124. Here, by contrast, the statements by the complainant related directly to the startling event, the sexual assault, and there was ample evidence to show the complainant was in an excited condition.

It is clear from the testimony of the Martoccis and the Kasubas that the complainant was under the stress of the sexual assault when she made her statements to them. The Martoccis described her as shaking, pale and hysterical. As she told them about being attacked by a man with a knife, she was crying and trembling.

The Kasubas described the complainant as very frightened, afraid to return to her own apartment, nervous, and crying. She remained in the Kasubas' apartment and related some of the details of the assault, becoming hysterical as she described being forced to remove her nightgown. When the Kasubas discovered defendant had returned to the complainant's apartment, they found the complainant, who had been standing in the doorway to their apartment, huddled in a ball on the floor, crying and...