State v. Snow

• Decision Date: 15 March 2013
• Docket Number: No. 12–002.,12–002.
• Citation: 2013 VT 19,70 A.3d 971
• Parties: STATE of Vermont v. Mark A. SNOW.
• Court: Vermont Supreme Court

70 A.3d 971

2013 VT 19

STATE of Vermont

v.Mark A. SNOW.

No. 12–002.

Supreme Court of Vermont.

March 15, 2013.

David R. Fenster, Addison County State's Attorney, Christopher E. Perkett, Deputy State's Attorney, and Jordan J. Benjamin, Legal Intern, Middlebury, for Plaintiff–Appellee.

Matthew F. Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.

REIBER, C.J.

¶ 1. Defendant appeals his conviction for sexual assault under 13 V.S.A. § 3252. Defendant contends that the trial court gave an improper jury instruction, mischaracterizing the law and eliminating the State's burden to prove each and every element of the crime as charged. We conclude that the jury instruction accurately reflected the law as applied to the circumstances of this case and that the instruction did not compromise defendant's ability to contest the charges against him. We therefore affirm.

¶ 2. The salient facts and procedural background are as follows. Defendant was charged with sexual assault in connection with an incident that followed an alcohol-fueled New Year's Eve party on December 31, 2009. The State alleged that defendant sexually assaulted the victim while she was unconscious in a bedroom where she had gone to sleep after feeling ill. The victim testified that she awoke in pain with defendant's penis inside of her, immediately yelled at him, and left the room.

¶ 3. Defendant, meanwhile, testified that the alleged victim called him into the bedroom. Defendant testified that he did not insert his penis into the alleged victim, but that they engaged in mutual fondling, which he claimed the victim initiated.

¶ 4. After the parties completed their cases, the court instructed the jury. As part of the initial instruction, the court indicated:

The third essential element is that [defendant] compelled [complainant] to participate in the sexual act without [complainant's] consent. “To compel” means to deliberately use force or to exert pressure to overcome the will of the other person. “Consent” means words or actions by the other person indicating a voluntary agreement to engage in a sexual act. “Consent” means consent of the will. Lack of consent may be shown if [defendant] had sexual contact with [complainant] without the opportunity for her to consent. Lack of consent may be shown without proof of resistance. [Complainant] did not consent if [defendant] knew that [complainant] was not physically capable of resisting or declining to consent to the sexual act. Alternatively, [complainant] did not consent if [defendant] knew that [complainant] was unaware that a sexual act was being committed.

¶ 5. During deliberations, the jury asked the court to “clarify what ‘compel’ means.” The trial court drew language from State v. Hazelton, 2006 VT 121, 181 Vt. 118, 915 A.2d 224, and proposed the following: “No actual force or compulsion [was] necessary to commit the offense.... The element of compulsion is satisfied by lack of consent alone.” After discussing the proposed response with counsel, the court gave jurors a written answer over a defense objection. The answer, drawn almost verbatim from Hazelton, read:

The law prohibits a person from compelling another person to participate in a sexual act without the consent of the other person. No actual force or compulsion is necessary to commit the offense.A person is “compelled” to engage in a sexual act in violation of the law as the result of an offender's conduct to unilaterally engage another in a sexual act without consent, that is, without any indication that the victim is freely willing to participate. Consent means words or actions by a person indicating a voluntary agreement to engage in a sexual act. The element of compulsion is satisfied by lack of consent alone.

¶ 6. Defense counsel objected to the supplemental instruction, stating, in effect, that the original instruction adequately described the relevant law and that the court should not tailor a standard jury instruction to accommodate the specific factual allegation that the complainant was asleep or otherwise unaware of the assault. After deliberating for another hour, the jury convicted. The court later denied defense counsel's motion for a new trial. Defendant appeals.

I

¶ 7. Defendant first contends that the trial court improperly drew upon our language in Hazelton to describe the applicable law. We disagree.

¶ 8. On appeal, we review jury instructions as a whole to determine if they accurately reflect the law.¹State v. Rideout, 2007 VT 59A, ¶ 17, 182 Vt. 113, 933 A.2d 706. This Court assesses whether the instructions “provided sufficient guidance to the jury without introducing prejudice into their deliberations.” State v. Kolibas, 2012 VT 37, ¶ 11, 191 Vt. 474, 48 A.3d 610 (quotation omitted). “Within the parameters of the law, the trial court may exercise its discretion in the wording of the jury charge ....” Rideout, 2007 VT 59A, ¶ 17, 182 Vt. 113, 933 A.2d 706 (quotation omitted). “The instructions must accurately state the law on every theory fairly put forward by the evidence.” State v. Verrinder, 161 Vt. 250, 266, 637 A.2d 1382, 1392 (1993). We conclude that in light of the evidence and testimony presented, the language the court selected accurately described Vermont's sexual-assault law as it relates to a sleeping or otherwise unconscious victim.

¶ 9. “To convict defendant of sexual assault under 13 V.S.A. § 3252(a)(1)(A), the State [is] required to prove that [defendant] engaged in a sexual act with the victim without [the victim's] consent.” State v. Desautels, 2006 VT 84, ¶ 7, 180 Vt. 189, 908 A.2d 463. The statute defines consent as “words or actions by a person indicating a voluntary agreement to engage in a sexual act.” 13 V.S.A. § 3251(3). Under the State's theory, the alleged assault took place while the victim was asleep. The victim testified that she did not consent to sexual contact with defendant before she went to sleep, and it is self evident that she could not do so once asleep because a person who is not awake is physically incapable of consenting. See 3 C. Torcia, Wharton's Criminal Law § 282 (15th ed. 1995) (“A victim is obviously incapable of consenting to sexual intercourse when she is unconscious or asleep.”).

¶ 10. In response to the jurors' confusion regarding the meaning of the word “compel” as used in the court's initial instructions, the judge responded, in part, that the “element of compulsion is satisfied by lack of consent alone.” This is a nearly verbatim description of our sexual-assault law. The sexual-assault statute indicates, in relevant part:

No person shall engage in a sexual act with another person and compel the other person to participate in a sexual act:

(1) without the consent of the other person; or

(2) by threatening or coercing the other person; or

(3) by placing the other person in fear that any person will suffer imminent bodily injury.

13 V.S.A. § 3252(a). As we observed in State v. Nash, 144 Vt. 427, 433, 479 A.2d 757, 760 (1984), these subdivisions do not describe separate crimes but rather “separate ways by which the single offense of ‘compelling’ may be committed.” ² We reiterated this in Hazelton, from which the trial court drew the challenged jury-instruction language. In Hazelton, we observed:

The victim is “compelled” to engage in a sexual act in violation of § 3252 ... as the result of an offender's conduct to unilaterally engage another in a sexual act “without consent,” that is, without any indication that the victim is freely willing to participate.

2006 VT 121, ¶ 26, 181 Vt. 118, 915 A.2d 224 (citing Nash, 144 Vt. at 433, 479 A.2d at 760).

¶ 11. The language the trial court excerpted from Hazelton accurately indicates that a proven lack of consent on the part of a sleeping or unconscious victim will satisfy the statutory requirement of compulsion under 13 V.S.A. § 3252(a). Accord State v. Moorman, 320 N.C. 387, 358 S.E.2d 502, 506 (1987) (“In the case of a sleeping, or similarly incapacitated victim, it makes no difference whether the indictment alleges that the vaginal intercourse was by force and against the victim's will or whether it alleges merely the vaginal intercourse with an incapacitated victim. In such a case sexual intercourse with the victim is ipso facto rape because the force and lack of consent are implied in law.”); Paul v. State, 144 Ga.App. 106, 240 S.E.2d 600, 602 (1977) (“Sexual intercourse with a woman whose will is temporarily lost from intoxication, or unconsciousness arising from use of drugs or other cause, or sleep, is rape.”).

¶ 12. Defendant's contention that Hazelton dealt with a juvenile victim and should therefore not be “extended” to situations involving adult victims lacks merit because our analysis of the compelled sexual assault statute there merely repeated our understanding that the element of compulsion could be satisfied by a proven lack of consent. 2006 VT 121, ¶ 26, 181 Vt. 118, 915 A.2d 224 (citing Nash, 144 Vt. at 433, 479 A.2d at 760). A sleeping person—adult or juvenile—cannot consent while asleep. Thus, it is irrelevant that the complainant in this case was an adult as opposed to a minor, and use of Hazelton 's description of compelled sexual assault is therefore not an extension of governing law but rather a reiteration of it.

¶ 13. Because we conclude that the jury instructions as a whole accurately stated the law, we find defendant's allegation of error to be without merit. See State v. Baird, 2006 VT 86, ¶ 31, 180 Vt. 243, 908 A.2d 475 (affirming conviction where jury instructions “accurately and fairly reflect[ed] the law”).

II

¶ 14. Having concluded that the court's instruction adequately reflected the law generally, we must still determine whether the instruction eliminated an element of the crime as specifically charged by the State, thereby compromising defendant's ability to...