State v. Covino

STATE_V_COVINO.91-231; 163 Vt 378; 658 A.2d 916

[Filed 02-Dec-1994]

[Motions for Reargument Denied 2-Feb-1995]

[Motion for Reconsideration Denied 10-Mar-1995]

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.  Readers
are requested to notify the Reporter of Decisions, Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801 of any errors in order that
corrections may be made before this opinion goes to press. 


                           No. 91-231


State of Vermont                          Supreme Court

                                          On Appeal from
    v.                                    District Court of Vermont,
                                          Unit No. 2, Chittenden Circuit

Robert H. Covino                          September Term, 1994



Edward J. Cashman, J.

Scot Kline, Chittenden County State's Attorney, and Pamela Hall Johnson,
 Deputy State's   Attorney, Burlington, for plaintiff-appellee 

Robert Appel, Defender General, and William A. Nelson, Appellate Defender,
 Montpelier, for defendant-appellant 


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     MORSE, J.   Defendant appeals his jury conviction of kidnapping an
eleven-year-old girl, 13 V.S.A.  2401, 2402.  He claims that the trial
court erred by instructing the jury that the element of forcible confinement
could be established by proof of deception or misrepresentation and that the
elements of the offense need not occur simultaneously.  He also asserts error
in the exclusion of defendant's evidence of his prearrest conduct and in
admitting evidence gathered in a warrantless search of his appointment book. 
We affirm. 

     In the spring of 1988, the victim, an eleven-year-old child, went to
visit her grandmother, who lived at a senior citizens' complex.  Upon finding
that her grandmother was not home, she learned from a gardener where to locate
her grandmother, and set off to find her.  When she met defendant on the
street, she asked him for directions.  After defendant mentioned her
grandmother's name and asked the child if she was a granddaughter, he offered
to take the child to her grandmother, and they got into defendant's car. 

 

     The child realized that defendant was driving in the wrong direction and
she asked him several times to let her out of the car, but he refused.  At one
point, defendant threatened to kill the child if she tried to get him in
trouble with the police.  The child escaped when defendant pulled into a
highway rest area and stopped.  During her escape, he grabbed at her bag,
ripping it as she pulled away.  The child ran onto the highway, where a
passing motorist picked her up. 

     Shortly after the incident, defendant checked himself into hospitals in
Vermont and Massachusetts for medical treatment.  Upon his return to Vermont,
hearing the police were looking for him, he went to the Barre police station
and was arrested.  At the time of his arrest, the police seized and read
defendant's appointment book, which contained the notation "check with senior
citizens job" on the same day that he kidnapped the child.

                                   I. 

     Defendant claims that the trial court erred twice in giving jury
instructions.  First, he contends that the instruction that the element of
forcible confinement could be established by proof of deception or
misrepresentation was wrong.  According to defendant, the court's instruction
resulted in a conviction for kidnapping by inveiglement, rather than
kidnapping by force, which the State had charged in the information. 

     In its initial charge to the jury, the trial court described "force" as
actual, threatened, or moral force.  The explanation of moral force
corresponded with the definition of "inveiglement" in State v. Rivers, 84 Vt.
154, 157, 78 A. 786, 788 (1911) ("deception for the accomplishment of an evil
purpose"): 

     [F]orce means not only actual physical force but also what
     sometimes is called moral force.  The persuasiveness, the
     appearance of force.  The ability to persuade someone to the
     point where you overcome their will.  Without the application of
     this force, the person would not have done what is being
     complained of....It's influencing the child's mind to the point
     whether it be by a deception based on an evil purpose, the
     deluding of the child, misrepresentation, or the apparent ability
     to impose force. 

Defendant objected to the instruction by saying,

 

     You also said with regard to the definition of force that there
     be misrepresentation.  To me that's inviting a juror's verdict on
     behalf of the State. I don't think there's any case law in this
     State which actually talks of misrepresentation.  I think that's
     a statement that, I just think that's just not appropriate
     because it's just not supported by any case.  I mean deceit maybe
     I can understand because you've got the Rivers decision.  But
     misrepresentation I mean that can, that's too ambiguous. 

Defendant also objected to the term "deception for evil purpose," but he did
not state the grounds for that objection.  After the jury retired, it
requested clarification of the kidnapping elements and the court twice defined
"forcibly" in accordance with its original  instruction. Defendant did not
further explain why he had an objection to those instructions. 

     This Court repeatedly has stressed the importance of properly preserving
objections to jury instructions.  V.R.Cr.P. 30 requires counsel to object
before the jury retires "even if the substance of the objection is made known
before the jury charge," thus giving the trial court an opportunity to redress
any errors.  State v. Wheelock, 158 Vt. 302, 306, 609 A.2d 972, 975 (1992);
State v. Roberts, 154 Vt. 59, 72, 574 A.2d 1248, 1254 (1990) (requiring
post-instruction objection).  An objection must distinctly state the claimed
error and its grounds so that this Court can understand what defendant
intended to preserve for appeal.  Wheelock, 158 Vt. at 306, 609 A.2d  at 975
(requiring "a succinct recitation of specific itemized objections").
Defendant's objection was nonspecific.  At no point did defendant tell the
trial court the grounds urged on appeal, that the Rivers definition was not
applicable to the case because inveiglement was not charged.  Indeed,
defendant actually intimated to the trial court that Rivers was applicable by
saying, "I mean deceit maybe I can understand because you've got the Rivers
decision.  But misrepresentation...that's too ambiguous."  Accordingly,
defendant's objection regarding the court's instruction on the element of
forcible confinement was not preserved for appeal. 

     Second, defendant contends that the trial court erroneously instructed
the jury that a conviction was possible without finding a concurrence of an
act and an intent to kidnap.  In response to the jury's question, "Do all the
things have to happen simultaneously?" the trial 

 

court responded  that all the facts constituting kidnapping did not have to
occur "at one place or one time."  During the charge conference, defendant
asked the court to instruct the jury that it must find some nexus between
force and confinement, taking "those terms to have their natural meaning." 
Apart from the ambiguous nature of the jury's question, which may not have
been related to defendant's contention on appeal, defendant made no objection
after the court issued its instruction to the jury.  Defendant does not argue
that any plain error occurred. 

                                   II.

     Defendant next argues that the trial court erred by excluding evidence of
his prearrest conduct, which included his voluntary appearance at the Barre
police station two months after the issuance of an arrest warrant.  He offered
this evidence as proof of his consciousness of innocence and to peremptorily
rebut any inference of flight created by the State's mention of the dates of
the alleged kidnapping and defendant's arrest two months later.  Flight,
however, was not an issue in this case because the trial court refused to
allow evidence of defendant's absence. 

     Pursuant to V.R.E. 403, the trial court may exclude evidence if its
"probative value is substantially outweighed" by the danger of jury confusion,
considerations of undue delay and wasting time.  Absent an abuse of
discretion, the court's decision to exclude evidence will not be overruled. 
State v. McElreavy, 157 Vt. 18, 23, 595 A.2d 1332, 1334-35 (1991) (court
entitled to substantial discretion).  Defendant has the heavy burden of
showing that the court withheld its discretion or exercised its discretion
upon untenable or unreasonable grounds.  Id. at 23, 595 A.2d  at 1335; State v.
Parker, 149 Vt. 393, 401, 545 A.2d 512, 517 (1988). Because flight was not at
issue, the introduction of defendant's prearrest conduct could confuse the
jury and delay the proceedings with little resulting probative gain.  Hence,
the trial court's decision to exclude this evidence under V.R.E. 403 is not
unreasonable and does not constitute an abuse of discretion. 

                                 III.

     Finally, defendant claims that the police unlawfully searched his
appointment book in 

 

violation of his Article Eleven and Fourth Amendment rights.  The appointment
book notation, which read "check with senior citizens job," was circumstantial
evidence that defendant intended to be at the senior citizen's complex on that
day.  An eyewitness testified that defendant was present at the complex, and
defendant never contested that fact.  We need not address the issue because
the evidence was obviously harmless.  V.R.Cr.P. 52(a); State v. Hunt, 150 Vt.
483, 494, 555 A.2d 369, 376 (1988). 

     Affirmed. 

                                   FOR THE COURT:



                                   ____________________________
                                   Associate Justice