State v. Cate

State v. Cate  (94-419); 165 Vt 404; 683 A.2d 1010

[Opinion Filed 9-Aug-1996]


       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. 94-419


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont,
                                                  Unit No. 3, Orleans Circuit

Kevin D. Cate                                     November Term, 1995


Walter M. Morris, J.

       Jane Woodruff, Orleans County State's Attorney, Newport, for
  plaintiff-appellee

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


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


       GIBSON, J.   Defendant Kevin Cate appeals his conviction for sexual
  assault, 13 V.S.A. § 3252(a)(1)(A).  He argues that the trial court erred
  in denying his motions for judgment of acquittal and for a new trial.  He
  also argues that a probation condition requiring him, as part of a
  sex-offender therapy program, to acknowledge culpability for his conduct
  violates his constitutional rights to free speech and against
  self-incrimination.  We vacate the probation condition requiring him to
  admit his guilt, but otherwise affirm.

       Viewed in the light most favorable to the State, State v. McGee, 163
  Vt. 162, 164-65, 655 A.2d 729, 732 (1995), the record discloses the
  following facts.  On April 28, 1993, defendant and complainant, together
  with another woman and three other men, attended a barbecue at a friend's
  house in Lowell.  Before arriving at the party, complainant had taken an
  anti-anxiety medication for which she had a prescription, and had also been
  drinking champagne. At the party, she drank beer and vodka, smoked
  marijuana, and consumed pills that another guest gave her that she believed
  were prescription painkillers.  At one point in the afternoon,

 

  complainant, who was wearing a one-piece bathing suit, pulled down her
  bathing-suit top and exposed her breasts to the other guests.

       As the afternoon progressed, complainant felt "extremely high" from
  the drugs and "very drunk" from the alcohol, and, around five o'clock, she
  decided to go upstairs in the house to pass out.  When she entered the
  house, there was no one else downstairs or upstairs.  She went upstairs and
  lay down on a bed.  The next thing she remembered was waking up in bed with
  her bathing suit pulled down and defendant on top of her with his penis
  inside her vagina. According to complainant, prior to that time, she had
  not told defendant that he could have sex with her.  When she awoke, she
  told defendant to "get the hell off me."  Defendant complied, telling
  complainant, "Don't worry, I won't tell [your boyfriend]."  Complainant
  dressed and immediately left the house to return home.

       When she arrived home, complainant telephoned a female friend, who
  described complainant as "pretty hysterical" and "crying and sobbing."  The
  friend told complainant to come right over, and complainant arrived within
  fifteen minutes, still crying and very upset. Complainant told her friend
  that she had gone to the barbecue in Lowell, had gotten drunk and had gone
  to lie down, and that when she awoke, defendant was having intercourse with
  her. The friend telephoned another female friend, and complainant spoke
  with the second friend, repeating her story.  Both friends advised
  complainant to seek medical treatment at the Newport hospital emergency
  room.  Complainant drove herself to the hospital that evening.  Emergency
  room records indicated that complainant arrived at 10:47 p.m. and left at
  12:55 a.m.

       Defendant was arrested the next day and charged with sexual assault. 
  According to the arresting officer, defendant reacted with "disbelief" to
  the charge.  After waiving his Miranda rights in writing, he stated that he
  had had sex with complainant the previous day, but that complainant had
  consented.  Defendant said that complainant was an "exhibitionist" who had
  been "flashing" at the barbecue.  He told the police that he had gone into
  the house in the late afternoon and found complainant in the upstairs
  bedroom, that he and complainant started

 

  talking, and that complainant then undressed, performed oral sex with him,
  and engaged in sexual intercourse with him.  Defendant told the police that
  complainant had been drinking but "wasn't that drunk" and "knew what she
  was doing" during the sex acts.  Defendant told the officer that
  complainant had never fallen asleep or passed out while they were together.

       The case was tried to a jury on May 17-18, 1994.  Prior to trial, the
  court granted defendant's motion in limine to allow evidence of
  complainant's prior sexual conduct at the April 28 barbecue, on the grounds
  that such evidence was material to her lack of consent, and did not fall
  within the protections of Vermont's rape shield act, 13 V.S.A. § 3255(a).

       At trial, the defense sought to convince the jury that complainant had
  not "passed out," but rather had "blacked out" at the party, and had
  willingly engaged in sexual conduct that she could not remember later. 
  Complainant testified that she had in the past experienced both blackouts
  and passing out, and knew the difference between the two phenomena. 
  According to complainant, when she blacked out she remained awake, whereas
  when she passed out she was rendered completely unconscious.  She testified
  that she was certain she had passed out before defendant commenced any
  sexual acts that day, and that she had not consented to any of those acts. 
  Complainant also testified that she had lived with defendant for three
  months the previous year in a nonsexual relationship, that defendant had
  invited her to have sex with him several times during that period, and that
  complainant had always refused.

       Three defense witnesses, including defendant, testified concerning
  complainant's conduct after she had gone upstairs to the bedroom. 
  According to these witnesses, a number of guests, including complainant and
  defendant, went inside the house in the late afternoon.  The defense
  witnesses described complainant as dancing partly or fully unclothed in the
  upstairs bedroom while the party's host attempted to sleep, and then
  engaging in oral sex, first with the host and then with defendant, while
  the other guests watched.  Defendant testified that the other guests went
  downstairs, leaving complainant and himself alone upstairs, and that
  complainant then began making gestures to indicate that she wanted to
  perform sex acts or oral sex on him, and

 

  that he "clearly asked it if was okay."  Complainant pulled her bathing
  suit down around her waist and performed oral sex for about twenty minutes. 
  Complainant then began "gesturing that we have intercourse."  Defendant
  asked whether it would affect their friendship, and complainant said, "No,
  that would be okay."  Complainant then removed her bathing suit entirely,
  and defendant and complainant "had intercourse for a short period of time,"
  until defendant "decided myself I had enough."  Defendant removed his penis
  and talked for a minute with complainant, who then got up and put her
  swimsuit back on.  Whereupon defendant said, "I hope it doesn't affect our
  friendship."  According to defendant, complainant was fully conscious
  throughout this period, and was never sleeping or passed out.

       At the end of the State's case, and again at the conclusion of the
  evidence, defendant moved for acquittal on the ground that the State had
  failed to prove complainant's lack of consent beyond a reasonable doubt, as
  required under 13 V.S.A. § 3252(a)(1)(A).  The court denied defendant's
  motion, and the jury returned a guilty verdict.  The court later denied
  defendant's motion for a new trial.

       Defendant was sentenced to five-to-fifteen years in prison, with all
  but three years of the prison term suspended, and to an indefinite term of
  probation, which included the following condition:

       5.  . . . You shall sign an acknowledgement of responsibility for the
       acts for which you have been placed on probation.  (This will be
       used for treatment purposes & will not be used against you for
       civil proceedings). . . .  It is necessary for Mr. Cate to work
       through denial in order to be eligible for the seex [sic] offender
       program in the Chittenden facility, if he does not choose to do
       this program, a V[iolation] O[f] P[robation] could be done while
       he is incarcerated and the def[endant] would then be sent to the
       Northwest State Corr[ectional] Facility in St. Albans.

  (Emphasis added.)  The present appeal followed.

                                I.

       Defendant claims that the trial court should have granted a judgment
  of acquittal because there was insufficient evidence to prove beyond a
  reasonable doubt that complainant had not

 

  consented to defendant's sexual acts.  13 V.S.A. § 3252(a)(1)(A).  In
  reviewing a denial of a motion for judgment of acquittal, we view the
  evidence in the light most favorable to the State, excluding any modifying
  evidence; we will uphold the court's ruling if the evidence fairly and
  reasonably could convince a reasonable trier of fact of defendant's guilt
  beyond a reasonable doubt.  McGee, 163 Vt. at 164-65, 655 A.2d  at 732;
  V.R.Cr.P. 29(a).

       The State presented complainant's testimony that she was passed out at
  the time of the alleged offense, that she had not, up to that point, given
  anyone consent to have sex with her, and that, upon waking from her
  passed-out state, she had demanded that defendant immediately stop having
  sex with her.  Two State's witnesses testified that complainant was
  "hysterical" in the hours after the alleged offense and told them that she
  was asleep when defendant began having intercourse with her; a third
  witness, the emergency room nurse who treated complainant for over an hour
  at the hospital, testified that complainant was still upset at 11:00 on the
  evening of the alleged offense.  Finally, complainant's friend testified
  that complainant on prior occasions had rejected defendant's sexual
  advances.  We conclude that the evidence was sufficient to fairly and
  reasonable convince a reasonable jury, beyond a reasonable doubt, that
  complainant had not consented to a sexual act with defendant.

       Defendant contends, however, that complainant's testimony should have
  been excluded because she could not testify from personal knowledge, owing
  to her extreme intoxication at the time of the alleged offense; that
  evidence of complainant's insistence that defendant's sex acts stop
  immediately and of complainant's emotional state after the event was not
  sufficient to prove lack of consent; and that evidence of complainant's
  prior rejections of defendant's sexual advances was improperly admitted to
  show lack of consent.  We address these claims in order.

                               A.

       Defendant contends that complainant's testimony should have been
  excluded because her account of the circumstances of the alleged assault
  indicates significant memory gaps, and that complainant therefore was not
  competent to testify that she had passed out and was unable or

 

  unwilling to consent to sex.

       As a general rule, reception of evidence is a matter of discretion for
  the trial court.  State v. Percy, 156 Vt. 468, 475, 595 A.2d 248, 252
  (1990).  In the instant case, however, defendant failed to object to the
  competency of complainant's trial testimony.  The trial transcript reflects
  that, when the State asked complainant whether she knew the difference
  between "blacking out" and "passing out," defense counsel objected on the
  ground that the State had failed to lay a foundation that complainant was
  qualified to offer an opinion.  See V.R.E. 701, 702 (setting forth
  foundations for opinion testimony by lay and expert witnesses).(FN1)  Before
  the trial court ruled on the objection, the State elicited foundation
  testimony from complainant concerning her prior experiences with
  "blackouts" and "passing out."  The following exchange then occurred:

         STATE:         On April 28th of 1993, did you pass out or black
                        out?
         COMPLAINANT:   I passed out.

       At no time did defense counsel request a bench ruling on his earlier
  objection, or raise a Rule 602 objection that complainant lacked personal
  knowledge of the matter.  On the record presented, we conclude that defense
  counsel did not object with sufficient specificity and clarity to allow the
  trial court a fair opportunity to rule on the question.  See In re D.C.,
  157 Vt. 659, 660, 613 A.2d 191, 191 (1991) (mem.).  In any event, an
  objection based on the witness's qualification to render an opinion, even
  if ruled upon by the trial court, does not preserve an appeal based on the
  witness's competence.  See State v. Sims, 158 Vt. 173, 181, 608 A.2d 1149,
  1154 (1991) (objection on one ground does not preserve appeal claim based
  on another ground).

       As we recently observed, "The duty to exclude objectionable testimony
  rests squarely

 

  with defense counsel, and without an objection, the defendant fails to
  preserve the issue for appeal."  State v. Gomes, 162 Vt. 319, 330, 648 A.2d 396, 404 (1994).  In such circumstances, "we may reverse `only if we find
  that the trial court's failure to exclude the testimony sua sponte
  constituted plain error.'"  Id. (quoting State v. Ross, 152 Vt. 462, 468,
  568 A.2d 335, 339 (1989)) (emphasis added).  We will find plain error only
  in the rare and extraordinary case where the error is obvious, and only if
  the error affects substantial rights of the defendant. Sims, 158 Vt. at
  181, 608 A.2d  at 1154.

       We conclude that the court's failure, on its own, to exclude or limit
  complainant's testimony did not amount to plain error.  The Vermont Rules
  of Evidence provide that "[e]very person is competent to be a witness
  except as otherwise provided by statute or in these rules." V.R.E. 601.  An
  explicit exception to the presumption of competency is found in Rule 602,
  which states, "The testimony of a Witness may be excluded or stricken
  unless evidence is introduced sufficient to support a finding that [s]he
  has personal knowledge of the matter." V.R.E. 602.  The rule goes on,
  however, to say that "[e]vidence to prove personal knowledge may, but need
  not, consist of the testimony of the witness h[er]self."  Id.  The rules
  reflect "the modern trend which has converted questions of competency into
  questions of credibility while `steadily moving towards a realization that
  judicial determination of the question of whether a witness should be heard
  at all should be abrogated in favor of hearing the testimony for what it is
  worth.'"  3 J. Weinstein & M. Berger, Weinstein's Evidence  601[05], at
  601-40 (1990) (hereinafter Weinstein) (quoting Comment, Witnesses Under
  Article VI of the Proposed Federal Rules of Evidence, 15 Wayne L. Rev.
  1236, 1250 (1969)).

       In the instant matter, defendant was aware from the commencement of
  prosecution that complainant both admitted heavy consumption of drugs and
  alcohol prior to the alleged sexual assault and claimed to have been
  unconscious at the time the alleged sexual assault began. Defendant made no
  effort, however, to obtain a pretrial ruling on complainant's competency to
  testify from personal knowledge; nor did defendant, once trial had
  commenced, seek voir dire

 

  of complainant's testimonial competency outside the jury's presence or
  otherwise object to complainant's testimony on competency grounds.  The
  effects of drugs or alcohol to impair the ability of a witness to perceive
  or remember events are not proper subjects for judicial notice, so as to
  render a witness incompetent per se to testify.  State v. Booth, 423 S.W.2d 820, 823 (Mo. 1968).  Rather, where a witness admits to drinking or
  consuming drugs heavily at the time of critical events, and testifies to an
  ebbing or fading memory concerning those events, the question is properly
  treated by the court as one of credibility and not competency, and the
  question is best left to the jury.  United States v. Strahl, 590 F.2d 10,
  12 (1st Cir. 1978); see also United States v. Bedonie, 913 F.2d 782, 799
  (10th Cir. 1990) ("We consider appellants' suggested fusion of competency
  and credibility analysis to be regressive rather than progressive in
  relation to the evolution of the law in this area.").

       As one commentator has observed:

     [T]he judge must admit the testimony even though the witness is not
     positive about what [s]he perceived, provided the witness had an
     opportunity to observe and obtained some impression from h[er]
     observations.  This is true even where the witness admits to having
     perceptual problems.  In that situation, a complete revelation of the
     witness' problems to the jury will allow it to assess the witness' 
     testimony in light of the actual circumstances and give it the 
     appropriate weight.

  Weinstein, supra,  602[02], at 602-12 to 602-13 (footnote omitted); accord
  United States v. Peyro, 786 F.2d 826, 830-31 (8th Cir. 1986) (where witness
  testified to "broad, general recollection" despite substantial memory
  problems, no abuse of discretion in allowing testimony to reach jury, and
  no prejudice to defendant because witness's "recall and emotional problems
  were laid bare for the jury's consideration").  In the instant matter,
  there was no plain error in allowing complainant's testimony to reach the
  jury.

                                B.

       Defendant claims that the trial court erred in concluding that
  complainant's insistence that defendant's sex acts stop immediately at the
  moment she awoke and the reports of complainant's emotional state after the
  event precluded entry of a judgment of acquittal.  Defendant argues that

 

  this evidence, while supportive of complainant's later belief that she had
  not consented to the sex acts with defendant, was not probative of
  complainant's lack of consent at the time of the sex act.  Again,
  defendant's argument goes to the weight and not the sufficiency of the
  evidence. See State v. Eaton, 134 Vt. 205, 208, 356 A.2d 504, 506 (1976)
  (weight of complainant's testimony and her credibility are factors for jury
  to determine).  On a motion for judgment of acquittal, it was appropriate
  for the trial judge, viewing the evidence in a light most favorable to the
  State, to allow this evidence to reach the jury.

                                C.

       Defendant contends that, in denying his motion for judgment of
  acquittal, the trial court erred in considering evidence that complainant
  had rejected defendant's sexual advances in the past.  Citing V.R.E.
  404(a), defendant argues that evidence of complainant's past conduct was
  not admissible to show her propensity to act in accordance with it.  Here
  again, defendant failed to object to this evidence at the time it was
  offered and we will review the court's ruling for plain error only.  State
  v. Noyes, 157 Vt. 114, 116, 596 A.2d 340, 341 (1991).

       Under Rule 404(a), evidence of a character trait generally is not
  admissible to prove that a person conformed to that trait on a particular
  occasion.  Evidence of other acts may, however, be used to prove knowledge,
  intent, or absence of mistake or accident.  V.R.E. 404(b).  The court did
  not err in considering evidence of defendant's prior advances to
  complainant and her prior refusals, because a reasonable jury could find
  those prior acts probative of defendant's knowledge that complainant would
  not have consented to sex with defendant had she been mentally capable of
  understanding the nature, or otherwise been aware, of the sexual acts.  See
  13 V.S.A. § 3254(2)(A),(C).

                              II.

       Next, defendant argues that the trial court's denial of his motion for
  a new trial relied on a theory of the case that was not presented at trial
  and incorrectly stated the law of sexual assault.  A new trial based upon
  the weight of the evidence should be granted only where the

 

  evidence preponderates heavily against the verdict and a serious
  miscarriage of justice would otherwise result.  State v. Trombly, 148 Vt.
  293, 297, 532 A.2d 963, 966 (1987), cert. denied, 486 U.S. 1029 (1988);
  V.R.Cr.P. 33.  Unlike a Rule 29 motion, a Rule 33 motion tests the
  sufficiency of all the evidence presented at trial.  "The basic difference
  is that the motion under Rule 29 raises the question whether the
  prosecution has presented an adequate case, whereas the motion under Rule
  33 raises the question whether the jury has correctly performed its
  function of evaluating admittedly adequate evidence."  Reporter's Notes,
  V.R.Cr.P. 33.  The disposition of a motion for a new trial is within the
  court's discretion, and its decision will not be reversed unless defendant
  shows that discretion was either withheld or abused.  State v. Briggs, 152
  Vt. 531, 542, 568 A.2d 779, 785 (1989).

       Defendant first argues that the court denied the motion for a new
  trial based in part on the theory that complainant was too intoxicated to
  consent, a theory of the case that was not presented at trial.  According
  to defendant, the State produced evidence only that complainant was
  unconscious and therefore unable to give consent; consequently, the defense
  never had a chance to respond to the claim that complainant could not have
  given consent even in a state of blackout.  Defendant did not object,
  however, to the jury instruction that

    [l]ack of consent may be shown where a defendant knows that the other
    person is mentally incapable of understanding the nature of the sexual
    act, or knows that the other person is not physically capable of resisting
    or declining consent to the sexual act.  Or knows that the other person
    is unaware that a sexual act is being committed.


       Throughout the trial, the State sought to prove that complainant was
  so intoxicated that she was unable to consent to defendant's sexual
  advances.  Whether the jury found that complainant was unable to consent
  because she had passed out or blacked out was not significant, so long as
  the evidence did not preponderate heavily against the jury verdict.
  Trombly, 148 Vt. at 297, 532 A.2d  at 966.  In this case, the evidence does
  not preponderate heavily against either theory.

       Defendant also argues that the trial judge misapplied Vermont's law of
  sexual assault in

 

  denying defendant's motion for a new trial.  We disagree.  The court noted
  that "a reasonable inference is that a state of intoxication to the point
  of either passing out or `blacking out' would be inconsistent with a claim
  that the victim was not so impaired as to be incapable of consent."
  Defendant contends that the foregoing statement undermines one crucial
  element of sexual assault, namely, that the State must prove defendant knew
  that complainant did not or was not able to consent.  See 13 V.S.A. §
  3252(a)(1)(A).  He argues that the State failed to show that defendant had
  knowledge of her lack of consent, and that the record actually indicates
  that complainant had blacked out and had willingly engaged in sex acts that
  she cannot now remember.  Whether complainant passed out or blacked out,
  however, a reasonable juror could find that defendant knew that complainant
  was either unaware that a sex act was being committed or incapable of
  declining consent to that act.  Id. § 3254(2)(A)-(C).

       The court's order denying defendant's motion for a new trial indicates
  that the court reviewed the evidence supporting the defense and prosecution
  theories of the case and found that "the trial was essentially a
  credibility contest."  Defendant presented extensive evidence to support
  his claim that complainant had blacked out and may have given consent
  without remembering that fact and that, consequently, defendant had no
  basis to know that she did not consent.  The State also offered evidence
  that complainant was so intoxicated that defendant had good reason to know
  that she was not capable of giving consent.  At the close of evidence, the
  jury chose to believe the State.  The evidence does not preponderate
  heavily against the jury's determination that defendant knew that
  complainant was so intoxicated that she could not consent.

                               III.

       Finally, defendant argues that the probation condition requiring him
  to admit his guilt as part of sex-offender therapy should be stricken
  because it violates his Fifth Amendment and Article 10 rights against
  self-incrimination and his First Amendment and Article 11 rights of free
  speech.  Specifically, defendant argues that the requirement that he sign
  an acknowledgement

 

  of responsibility for sexually assaulting the victim is unconstitutional
  because (1) signing the acknowledgement would incriminate him for perjury,
  (2) penitential confessions violate the Fifth Amendment, and (3) the
  condition derogates his free-speech rights.  Because the first argument is
  dispositive of defendant's claim on appeal, we do not reach the second and
  third arguments.

       In Mace v. Amestoy, 765 F. Supp. 847 (D. Vt. 1991), the United States
  District Court held that when an individual asserts the privilege against
  self-incrimination, the Fifth Amendment

     "`privileges [a person] not to answer official questions put to him in any
     other proceeding, civil or criminal, formal or informal, where the
     answers might incriminate him in future criminal proceedings. . . unless
     and until he is protected at least against the use of his compelled
     answers.'"

  Id. at 850 (quoting Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (quoting
  Lefkowitz v. Turley, 414 U.S. 70, 77-78 (1973)).  In Mace, a probation
  condition required the probationer to admit to his sex-offender therapist
  that he had had intercourse with the victim, even though his conviction was
  for lewd and lascivious conduct, a different crime from statutory rape. 
  The federal district court adopted the finding of the federal magistrate
  that a probationer "`should not be left to the good intentions of the state
  when forced to incriminate himself or face incarceration,'" id. at 852
  (quoting Mace v. Amestoy, No. 90-177, slip op. at 9 (D. Vt. Nov. 27, 1990)
  (Niedermeier, Mag.)), and held that "the state has the burden of
  eliminating the threat of incrimination."  Id. at 851.  Thus, "[i]f the
  state wishes to carry out rehabilitative goals in probation by compelling
  offenders to disclose their criminal conduct, it must grant them immunity
  from criminal prosecution."  Id. at 851-52 (footnote omitted); cf. State v.
  Gleason, 154 Vt. 205, 210-13, 576 A.2d 1246, 1249-51 (1990) (probationer
  has no self-incrimination privilege for confession made in sex-offender
  therapy where double jeopardy clause protects probationer from all future
  proceedings and punishments connected with confession).

       Although we are not bound by the decisions of the federal district
  court, we give respect and persuasive effect to its well-reasoned decisions
  on questions involving the United States Constitution.  State v. Austin,
  No. 95-256, slip op. at 6 (Vt. Aug. 9, 1996).  We agree with and


 

  accordingly adopt the reasoning of the court in Mace, and hold that a
  person in a probation setting cannot be forced to incriminate himself
  without first receiving immunity from criminal prosecution as a result
  thereof.

       A probationer may not assert the privilege against self-incrimination
  where his statements pose no realistic threat of incrimination in a
  separate criminal proceeding.  Gleason, 154 Vt. at 212, 576 A.2d  at 1250. 
  At oral argument before this Court, however, the prosecutor plainly stated
  that, if defendant signs the acknowledgement, she will charge him with
  perjury, an offense distinct from the crime for which he was convicted. 
  See United States v. Dixon, 113 S. Ct. 2849, 2856 (1993) (test for whether
  two offenses constitute "same offense" for purposes of double jeopardy is
  whether "each offense contains an element not contained in the other").
  Although the protection of the Fifth Amendment does not hinge on the
  likelihood of prosecution, see Mace, 765 F. Supp.  at 851, the prosecutor's
  statement demonstrates that the State has not met its burden of eliminating
  the threat of incrimination.  See State v Steinhour, 158 Vt. 299, 301-02,
  607 A.2d 888, 890 (1992) (State may validly insist on answers to
  incriminating questions only if it recognizes that answers may not be used
  in criminal proceeding and thus eliminates threat of incrimination); see
  also State v. Imlay, 813 P.2d 979, 985 (Mont. 1991) (because of potential
  for future perjury prosecution, probationer required to acknowledge guilt
  to comply with sex-offender treatment condition properly invoked privilege
  against self-incrimination).  Requiring defendant to comply with his
  probation condition under such circumstances leaves defendant to the good
  intentions of the State, a result foreclosed by Mace v. Amestoy, 765 F. Supp.  at 852.  Without protection from the use of his statements in future
  prosecutions, defendant is entitled to invoke his Fifth Amendment privilege
  and is not required to sign the acknowledgement.

       The federal district court in Mace specified that the prosecuting
  attorney must grant immunity if the State wishes to pursue rehabilitative
  goals in probation that compel offenders to discuss their criminal conduct. 
  Mace, 765 F. Supp.  at 851-52.  We are not convinced, however,

 

  that a prosecutor's interest in rehabilitative probation, when weighed
  against the prosecutor's interest in prosecuting criminal conduct, is
  sufficient in and of itself to make the Mace court's remedy workable.  See
  S. Solkoff, Judicial Use Immunity and the Privilege Against Self-
  Incirmination in Court Mandated Therapy Programs, 17 Nova L. Rev. 1441,
  1487 (1993) ("While society has an interest in effective rehabilitation,
  the prosecutor is naturally reluctant to extend immunity unless there is a
  recriprocal prosecutorial pay-off.").  Moreover, under Vermont law, the
  prosecutor is barred from granting use immunity solely to foreclose a
  future perjury prosecution, which the State's Attorney has threatened in
  this matter.  See 12 V.S.A. § 1664(a) ("no testimony or other information
  compelled under the order, or any information directly or indirectly
  derived from such testimony or other information, may be used for any
  purpose, including impeachment and cross-examination, . . . except a
  prosecution for perjury . . . .") (emphasis added).

       Accordingly, in situations such as this, where the prosecutor has
  failed to eliminate the threat of future prosecution, we hold that the
  proper remedy for protecting a probationer's privilege against
  self-incrimination is a grant of judicial use immunity that makes any
  statements required for successful completion of rehabilitative probation
  inadmissible against the probationer at a subsequent criminal proceeding. 
  We further hold that the sentencing court must advise the probationer that
  statements required for successful completion of probation, and their
  fruits, will not be admissible against him or her at any subsequent
  criminal proceeding.  See State v. Begins, 147 Vt. 295, 299-300, 514 A.2d 719, 722-23 (1986) (adopting judicial rule of evidence barring use of
  probationer's statements at subsequent criminal trial and requiring trial
  court to advise probationer of testimonial immunity).

       We do not mean by our decision today to discourage district courts
  from imposing probation conditions of the kind at issue here.  This Court
  has addressed, in several decisions in recent years, the constitutional
  claims arising when a convicted sex offender is required, as a condition of
  his probation, to attend sexual aggressiveness therapy, but the sentencing
  judge

 

  fails to advise the probationer that a requirement of such therapy is that
  the probationer acknowledge guilt for his criminal conduct.  See, e.g.,
  State v. Fisk, 7 Vt. L.W. 143, 143-44 (1996); State v. Rickert, ___ Vt.
  ___, ___, 665 A.2d 887, 888 (1995) (mem.); State v. Coleman, 160 Vt. 638,
  640, 632 A.2d 21, 23 (1993) (mem.).  Justice Dooley, dissenting in Fisk,
  recently noted that "the high likelihood of misunderstanding" under such
  circumstances has resulted in a "recurring problem in prosecutions for
  sexual assault."  Fisk, 7 Vt. L.W. at 144 (Dooley, J., dissenting).  In
  this matter, the Orleans District Court attempted to circumvent this
  problem by crafting a probation condition that clearly advised defendant of
  the implications of the probation condition requiring him to attend sexual
  aggressiveness therapy.  We laud such efforts, but caution today that the
  court's intention to advise a probationer fully of the implications of
  probation conditions cannot come at the expense of the probationer's
  privilege against self-incrimination.

       Accordingly, the probation order must be vacated, and the cause
  remanded for resentencing.  On remand, the trial court may reimpose the
  challenged probation condition, but only if it first assures defendant on
  the record that statements required for successful completion of probation,
  and their fruits, will not be admissible against him at any subsequent
  criminal proceeding.  Absent such assurance, the State may not seek, nor
  the court impose, a probation condition requiring defendant to admit
  culpability for the conduct of which he stands convicted.

       Affirmed, except that the sentencing order requiring defendant to
  acknowledge his culpability as a prerequisite to enrollment in sexual
  aggressiveness therapy is vacated, and the cause remanded for resentencing
  in light of this decision.


                        FOR THE COURT:


                        ____________________________________________________
                        Associate Justice




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                                  Footnotes



FN1.  Among the foundational elements of opinion testimony by a lay
  witness's opinion be "rationally based on the perception of the witness." 
  V.R.E. 701(a).  Defense counsel did not specify, however, whether he was
  objecting to complainant's qualifications as a lay witness or as an expert
  witness.  Compare V.R.E. 701 (lay witness) with 702 (expert witness).