State v. Synnott

• Decision Date: 04 February 2005
• Docket Number: No. 03-113.,03-113.
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Stephen SYNNOTT

872 A.2d 874

STATE of Vermont v. Stephen SYNNOTT

No. 03-113.

Supreme Court of Vermont.

February 4, 2005.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Bradley S. Stetler of Stetler, Allen & Kampmann, Burlington, for Defendant-Appellant.

Present: DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.) and GIBSON, J. (Ret.), Specially Assigned.

ALLEN, C.J. (Ret.), Specially Assigned.

¶ 1. Defendant appeals a jury verdict finding him guilty of lewd and lascivious behavior, second degree unlawful restraint, and attempted sexual assault. He argues that (1) the trial court abused its discretion by admitting evidence of him touching his genitals and acting strangely in a holding cell at the police station following the alleged assault; (2) the unlawful restraint conviction cannot stand independent of the other charges; (3) the evidence was insufficient to support the attempted sexual assault conviction; (4) the trial court's jury instruction on the attempted sexual assault conviction failed to adequately explain the element of intent; and (5) the trial court gave the jury an erroneous and prejudicial supplemental instruction on the attempted sexual assault charge. We find no error requiring reversal and therefore affirm the convictions.

¶ 2. On the evening of December 28, 2001, the complainant and her friend, who was spending the night with complainant, were having drinks at a bar when defendant arrived and sat near the two women. After the three spent several hours at the bar conversing, the complainant decided that it was time to take her drunk friend home. Defendant suggested that they go to his nearby hotel for coffee. They agreed and walked a couple of blocks to the hotel. After spending about an hour in defendant's hotel room, where the complainant allowed defendant to give her a back rub, they walked to the complainant's apartment, less than a mile away. When they arrived at the apartment, the complainant's friend fell asleep immediately.

¶ 3. Over the next four hours, defendant behaved in a manner that increasingly alarmed the complainant. Defendant became upset after being unable to download a particular song from the Internet. When the complainant suggested that it might be time to call it a night, defendant put his hands on her shoulder to prevent her from standing up and pushed her back into the chair she was sitting in. Refusing to allow the complainant to log off the Internet, defendant swung his legs over the arms of her chair, sat down on her lap facing her, and began kissing her and squeezing her breasts. Every time the complainant attempted to get up to check on her friend or to change the song on the CD player, defendant would push her back into the chair. At times, he became agitated, complaining about the music or the complainant not drinking. The complainant attempted to placate him by agreeing with him and pretending to drink.

¶ 4. Finally, defendant allowed the complainant to go to the bathroom, but he insisted that she come right back, and he pushed the bathroom door open while she was inside. When the complainant returned from the bathroom, she asked defendant to leave. Defendant became agitated, repeatedly asking the complainant if he had not been good to her. At one point, he stood over the complainant's friend, whom he and the complainant had moved from an air mattress in the living room to the bedroom, and made chopping movements with his hands.

¶ 5. Defendant then pulled the complainant back into the living room, sat down on a chair, and tried to pull her onto his lap. When she resisted, he got angry. She reached for his shoulder in an attempt to calm him, but he screamed at her not to touch him. When she told him that she was tired, he pushed her onto the air mattress, pinned her with his body, and began yelling at her. He then began kissing her, fondling her, and removing her clothes. He ignored her pleas that he stop, and every time she tried to push him away, he screamed at her not to touch him. He removed his clothes and began to grind his crotch against hers. He urged her to take off her jeans and tried to do so himself when she refused. At one point, he whispered into her ear that he was bipolar, which made her more frightened of him. She eventually got him to get off of her by begging him for a glass of water. When he left the room, she ran to the computer and logged off the Internet.

¶ 6. When defendant returned, he was angry that the complainant had put her turtleneck back on. He kept asking her if he had not been good to her. By this time, the complainant was crying and begging defendant, telling him that it was her fault and not his. At one point, defendant grabbed her hand and pulled her towards the kitchen, again asking her if he had not been good to her. Then he put his hand around her throat and began to squeeze. He let her go after she acknowledged that he had been good to her. When he opened the refrigerator door, the complainant grabbed the phone, ran into the bedroom, and called the police.

¶ 7. Minutes later, the police arrived at the apartment building and saw defendant walking along the road outside, wearing a jacket and jeans, but no shirt. They detained him and spoke to the complainant, who was hysterical. Defendant was taken into protective custody and placed in a holding cell monitored by a security camera. While in the holding cell, defendant pulled down his pants, urinated, and then sat on the toilet. At one point, he got up from the toilet, walked around with his pants at his ankles, touched his genitals, and then raised his arms toward the ceiling. When the officer told him to put his pants back on, he did so.

¶ 8. Defendant was charged with (1) lewd and lascivious behavior, in violation of 13 V.S.A. § 2601, for fondling the complainant; (2) second degree unlawful restraint, in violation of 13 V.S.A. § 2406(a)(3), for preventing the complainant from getting out of her chair during a one-and-one-half-hour period; and (3) attempted sexual assault, in violation of 13 V.S.A. § 3252(a)(1) and § 9, for engaging in acts toward the commission of a sexual assault before being prevented from doing so. The district court denied defendant's pretrial motion to prevent the prosecution from admitting evidence concerning his behavior in the holding cell on the night of the alleged assault. Following a three-day trial, the jury convicted defendant on all three charges. The district court sentenced defendant to serve four-to-eight years for the first two offenses, with a suspended five-to-twenty-year sentence for the third offense.

I.

¶ 9. Defendant first argues that the introduction of a videotape showing him in a holding cell nude, urinating, defecating, and touching his genitals—together with police testimony concerning that behavior—was so prejudicial as to warrant a new trial. Shortly before trial, defendant filed a motion in limine asking the trial court to exclude testimony or other evidence of his behavior after the police took him into protective custody on the night of the alleged assault. Defendant argued that evidence concerning his behavior following his arrest would serve only to prejudice his case and inflame the jury. Defendant also argued that the videotape taken in the holding cell did not support the officers' testimony concerning his behavior. At the hearing on the motion, the State contended that evidence of defendant's erratic behavior following his arrest was relevant to corroborate the complainant's description of his bizarre behavior during the alleged assault and to counter his contention that she never clearly rejected his sexual advances. In response, defense counsel stated only that the videotape did not support the testimony of police officers that defendant was masturbating or engaging in lewd behavior in the holding cell. The trial court ruled that defendant's conduct after his arrest was relevant on the issue of consent, particularly given that the case was a credibility contest between defendant and the complainant. As for the potential prejudice to defendant, the court noted that the evidence might actually support defendant's diminished capacity defense.

¶ 10. At trial, one of the police officers who monitored defendant in the holding cell testified that she observed defendant urinate, sit down on the toilet, and then get up with his pants at his ankles, face the camera, and pull on his penis while screaming. Following this testimony, the jury viewed a videotape of defendant in the holding cell. The videotape is a soundless series of still images from several different cameras. The views of defendant in the holding cell last one-half second or less before moving on to views from other cameras showing scenes inside and outside the police station. The brevity of the still frames and the rapid movement from one frame to another make it difficult to view the videotape and to see what is happening. Generally, the videotape shows defendant, at various times, lying on a cot, urinating, and sitting on the toilet. At one point, defendant gets up from the toilet with his pants at his ankles, walks to the cell door, turns to face the camera, and then reaches toward the ceiling with both arms before placing his hands on his crotch. There are seven or eight still frames from the time he gets off the toilet until he pulls his pants back up, and only one of them shows defendant with his hands on his crotch.

¶ 11. After the videotape was shown to the jury, defendant asked the trial court to instruct the jurors that the videotape "relates only to the defense of intoxication and should not be used as evidence that he was engaged in some kind of lewd and lascivious act because there's nothing charged as far as what happened in the jail cell." The State responded that the videotape was being offered to corroborate the victim's account of defendant's bizarre...