State v. Stephens

• Decision Date: 02 October 2020
• Docket Number: No. 19-212,19-212
• Citation: 250 A.3d 601
• Parties: STATE of Vermont v. Robert E. STEPHENS
• Court: Vermont Supreme Court

250 A.3d 601

STATE of Vermont

v.Robert E. STEPHENS

No. 19-212

Supreme Court of Vermont.

June Term, 2020

October 2, 2020

Sarah F. George, Chittenden County State's Attorney, and Andrew Gilbertson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Allison N. Fulcher of Martin Delaney & Ricci Law Group, Barre, and Robert E. Stephens, Pro Se, Swanton, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

COHEN, J.

¶ 1. Defendant appeals a jury conviction of attempted sexual assault, arguing that: (1) the State's evidence at trial was insufficient to establish the offense charged in the State's information, and the trial court's instruction permitted the jury to convict him for conduct not charged by the State; (2) the trial court erred by excluding evidence of an alleged prior sexual encounter between defendant and the complainant; (3) the court erred by allowing the State to present evidence of flight as consciousness of guilt and by not giving the jury a precautionary instruction on the limited probative value of that evidence; (4) the conviction must be vacated because the criminal case was not disposed of within the time frame set forth in the Interstate Agreement on Detainers (IAD); and (5) the court erred by not granting him a new trial based on newly discovered evidence. We affirm.

¶ 2. Based on a sexual encounter between defendant and the complainant partway down an outdoor stairwell in downtown Burlington shortly before noon on July 16, 2016, the State charged defendant with "attempt[ing] to engage in a sexual act with another person and to compel the other person to participate in the sexual act without the consent of the other person, to wit: by attempting to put his penis in contact with [the complainant's] anus without her consent, in violation of 13 V.S.A. § 3252(a)(1)." Following a three-day trial held June 19-21, 2018, a jury found defendant guilty of the charged offense. In June 2019, the trial court imposed a sentence of eight years to life.

I. Interstate Agreement on Detainers

¶ 3. As an initial matter, we reject defendant's argument that his conviction should be vacated for failure to comply with Article III of the IAD, which is set forth in 28 V.S.A. § 1503. Pursuant to § 1503(a), a person in a "party state"¹ who has "entered upon a term of imprisonment" that is continuing when another party-state lodges a detainer based on an untried information "shall be brought to trial [in the latter state] within 180 days after he or she shall have caused to be delivered to the prosecuting officer and the appropriate court ... written notice of the place of his or her imprisonment and his or her request for a final disposition ... of the ... information."

¶ 4. A warrant for defendant's arrest was issued in September 2016 shortly after the State filed its information charging defendant with attempted sexual assault. In early 2017, defendant was arrested and detained in New York on unrelated charges. Vermont filed a fugitive-from-justice complaint, and in February 2017, defendant signed a formal waiver of his right to challenge extradition to Vermont. In March 2017, defendant sent a letter to the Chittenden criminal division indicating his willingness to return to Vermont to face the attempted-sexual-assault charge. Defendant was sentenced in connection with the New York charges in October 2017.

¶ 5. In December 2017, an inmate-records coordinator from New York sent the Chittenden County State's Attorney a packet of forms in accordance with the IAD. The following month, the State's Attorney sent IAD forms to New York seeking transfer of defendant to Vermont for arraignment on the pending Vermont charge. Defendant was extradited to Vermont and arraigned in February 2018. In April 2018, defendant filed a motion asking the criminal division to dismiss the pending Vermont charge with prejudice based on the State's failure to try his case within the IAD's 180-day deadline. The court rejected defendant's argument that the 180-day period in § 1503(a) was triggered by his March 2017 letter, noting that at the time defendant wrote the letter he was still a pretrial detainee who had not even begun serving a term of imprisonment in New York. The court instead concluded that the 180-day period was triggered by New York's December 2017 submission of IAD forms to Vermont, which created a presumptive deadline of June 24, 2018, for Vermont to bring defendant to trial.

¶ 6. In December 2018, following his conviction on the Vermont charge and the trial court's grant of his request for hybrid representation, defendant filed a pro se motion in which he argued that, even assuming the December 2017 submission triggered the 180-day period set forth in § 1503(a), his conviction must be vacated under the IAD because there was no final disposition of his Vermont case until June 2019, when he was sentenced. Defendant reasserts this argument on appeal, contending that the IAD mandates final disposition of a criminal case—in other words, sentencing—before expiration of the 180-period set forth in § 1503(a).

¶ 7. We find no merit to this argument. The plain language of § 1503(a) requires that a person imprisoned in another state and subject to an untried information for which a detainer has been lodged "shall be brought to trial within 180 days after" submitting a proper "request for a final disposition" of the information. (Emphasis added.) The term "request for final disposition" is used several times in § 1503, including in § 1503(d), upon which defendant relies. Subsection 1503(d) provides that a "request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition" of all informations for which detainers have been placed. (Emphasis added.) While the provisions in § 1503, including § 1503(d), speak in terms of a request for final disposition, the statute makes it clear that the end point for the 180-day appeal period set forth in § 1503(a) is when the defendant is "brought to trial." Accordingly, defendant's argument fails. See State v. Love, 2017 VT 75, ¶ 9, 205 Vt. 418, 174 A.3d 761 ("We look first to the statutory language's plain meaning and, if this language clearly expresses the legislative intent, we will enforce the statute without relying on statutory construction.").

II. Evidence and Instruction on the Charged Offense

¶ 8. We next address defendant's intertwined arguments that the State's evidence was insufficient to prove the offense as charged by the State and that the jury instruction on the elements of the charged offense permitted the jury to convict him for uncharged conduct.

A. Sufficiency of the Evidence

¶ 9. In challenging the sufficiency of the evidence, defendant emphasizes that the State's information narrowed the nature of the charged attempted sexual assault as follows: "to wit: by attempting to put his penis in contact with [the complainant's] anus." See 13 V.S.A. § 3252(a)(1) (prohibiting nonconsensual sexual act with another person); 13 V.S.A. § 3251(1) (defining term "sexual act" to include several types of conduct between persons, including "contact between ... the penis and the anus"); see also State v. Devoid, 2010 VT 86, ¶ 10, 188 Vt. 445, 8 A.3d 1076 (explaining that two elements are required for attempt: "(1) intent to commit a certain crime; and (2) an overt act designed to carry out that intent" (quotation omitted)). As defendant asserts, by using the phrase, "to wit," in its information, "the State gave notice to defendant of the precise actions it alleged violated the statute." State v. Kolibas, 2012 VT 37, ¶ 18, 191 Vt. 474, 48 A.3d 610. "And, when the information clearly states the conduct upon which the State relies in presenting its case, the State has the burden to prove this conduct to obtain a conviction." Id.

¶ 10. Defendant asserts that no evidence supports the offense as charged by the State. In reviewing the denial of a motion for judgment of acquittal based on a claim of insufficient evidence, we apply the identical "standard as that employed by the trial court: we view the evidence in the light most favorable to the State, excluding any modifying evidence, and determine whether it is sufficient to fairly and reasonably convince a trier of fact that the defendant is guilty beyond a reasonable doubt." State v. Davis, 2018 VT 33, ¶ 14, 207 Vt. 346, 186 A.3d 1088 (alteration and quotation omitted); see V.R.Cr.P. 29. "By design, this standard largely defers to the important role of juries in our judicial system," such that Rule 29 permits the grant of a motion for judgment of acquittal—thereby "remov[ing] a case from the jury's consideration"—only "when there is no evidence to support a guilty verdict." State v. Jones, 2019 VT 3, ¶ 12, 209 Vt. 370, 206 A.3d 153 (quotation omitted). "Juries may draw reasonable inferences from circumstantial evidence to decide whether disputed ultimate facts occurred" but "courts cannot allow juries to bridge evidentiary gaps with speculation." Id. ¶ 13 (quotations omitted).

¶ 11. In opposing defendant's argument that the evidence did not support the charge, the State relies primarily on the following testimony by the complainant. On the day of the alleged assault, the complainant met defendant in downtown Burlington after receiving a phone call from him. It turned out that defendant was not the person whom the complainant thought had called her, but she eventually recognized defendant from a previous drug exchange that took place at her relative's house in February 2015. After defendant led the complainant down an outdoor stairwell, he pulled out a bag of crack cocaine and asked her if she wanted to make some money. When she said she did not do the drug anymore, defendant asked her if she would have sex with him. She said no.

¶ 12. After a person passed nearby, defendant pushed the complainant against a railing, with him facing her backside. He pinned her...