State v. Grenier

 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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
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                                 No. 90-313


 State of Vermont                             Supreme Court

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

                                              October Term, 1991


 Matthew I. Katz, J.

 William Sorrell, Chittenden County State's Attorney, Burlington, and Pamela
  Hall Johnson, State's Attorneys and Sheriffs Department, Montpelier, for
  plaintiff-appellee

 Kenneth Schatz, Acting Defender General, and William Nelson, Appellate
   Attorney, Montpelier, for defendant-appellant



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



      Gibson, J.  Defendant John Grenier appeals his conviction for lewd and
 lascivious conduct, 13 V.S.A. { 2601.  He argues that the trial court erred
 (1) in failing to instruct the jury that lewd and lascivious conduct is a
 specific-intent crime, (2) in instructing the jury on lewd and lascivious
 conduct as a lesser-included offense of sexual assault, (3) in allowing
 testimony that should have been excluded under V.R.E. 404(b), and (4) in
 failing to strike part of the presentence report after defendant objected to
 its accuracy under V.R.Cr.P. 32(c)(4).  We affirm the conviction, but agree
 with defendant on his fourth claim of error.  We therefore vacate the
 sentence and remand the case for resentencing.
      Defendant was originally charged with two counts of sexual assault, 13
 V.S.A. { 3252(a)(1), for allegedly inserting his finger into the vaginas of
 two women.  Defendant went to the home of one of the women late one night
 after he had been drinking heavily.  She was asleep downstairs and, upon
 being awakened, let defendant in, believing him to be the boyfriend of her
 babysitter, who was in bed upstairs.  Defendant went upstairs, where he
 restrained the babysitter and fondled her, conduct that he later admitted
 was wrongful.  He then returned downstairs, where he fondled the other
 woman, with whom he had had prior sexual relations.  After this second
 alleged sexual assault, he and the second woman engaged in consensual sexual
 intercourse.  The jury found defendant guilty of one count of lewd and
 lascivious conduct for his acts against the woman upstairs.
                                     I.
      Defendant first argues that the court erred in failing to instruct the
 jury that a conviction for lewd and lascivious conduct requires a finding
 that defendant acted with specific intent to outrage the feelings of the
 alleged victim, i.e., the intention to achieve a precise harm or result.
 See State v. Audette, 149 Vt. 218, 220, 543 A.2d 1315, 1316 (1988).  Section
 2601 reads, "A person guilty of open and gross lewdness and lascivious
 behavior shall be imprisoned not more than five years or fined not more than
 $300.00, or both."  Although { 2601 sets out no specific-intent element,
 defendant contends that such an element is implicit and must be read into
 the statute.  The court instructed the jury, however, that it was "not nec-
 essary for the State to prove that defendant intended the precise harm . . .
 which occurred" -- in other words, the court charged that a conviction
 could rest on a finding of general wrongful intent.
      Upon examination of the record, we conclude that defendant did not
 preserve the issue of whether lewd and lascivious conduct is a specific-
 intent crime.  Although defendant sought a specific-intent instruction at
 the charge conference, this request pertained to the sexual assault
 charges, which are not before us. (FN1) Because defendant made no argument
 concerning the requisite mental state for lewd and lascivious conduct
 either during the conference or when he renewed his motion before the jury
 retired, we consider only whether the court's instruction was plain error.
 V.R.Cr.P. 52(b); State v. Wright, 154 Vt. 512, 520, 581 A.2d 720, 725-26
 (1989).
      Defendant relies on State v. Millard, 18 Vt. 574, 577 (1846) and State
 v. Purvis, 146 Vt. 441, 443, 505 A.2d 1205, 1207 (1985), which state that
 the crime of lewd and lascivious conduct is committed by lewd actions that
 are calculated to excite unchaste feelings and passions and outrage the
 feelings of the other person.  In those cases, however, the issue of whether
 lewd and lascivious conduct is a specific-intent crime was not before the
 Court.  Further, the language of the two cases does not appear in { 2601,
 although comparable language is contained in { 2602. (FN2) If the Legislature
 had intended to include specific intent, in addition to general intent, as
 an element of lewd and lascivious conduct, it presumably would have done so.
 See State v. Kerr, 143 Vt. 597, 605, 470 A.2d 670, 674 (1983) (Court will
 expand plain meaning with greatest caution and will read the element of
 scienter into a statute only when necessary to make it effective).
      We have previously considered whether omitting the element of intent
 from a jury charge on sexual assault on a minor amounted to plain error, and
 concluded that "[e]ven if intent were an element of the offense, . . . its
 omission from the information and jury charge would not constitute . . .
 plain error."  State v. Giroux, 151 Vt. 361, 365, 561 A.2d 403, 406 (1989).
 In the present case, we conclude that the omission of an instruction on
 specific intent was not plain error.
                                     II.
      Defendant next argues that the court committed plain error in
 instructing the jury that lewd and lascivious conduct was a lesser-included
 offense of sexual assault.  Defendant points out that this Court has pre-
 viously recognized the improper use of a lesser-included-offense instruction
 to be plain error, requiring reversal.  State v. Nicasio, 136 Vt. 162, 164,
 385 A.2d 1096, 1098 (1978).  In Nicasio, the Court held that operation of a
 motor vehicle without the owner's consent is not a lesser-included offense
 of grand larceny of an automobile, and entered judgment for the defendant.
 The Court noted that it was unable to determine from the record whether the
 defendant had in fact operated the vehicle, but commented that the verdict
 could not stand even had there been evidence of actual operation.
      In the instant case, however, defendant requested the court to charge
 lewd and lascivious conduct as a lesser-included offense.  The State
 initially objected, and the court refused defendant's request.  When the
 State withdrew its opposition, the court agreed to give the instruction, and
 defendant expressed his satisfaction with this approach.  Under these cir-
 cumstances, defendant is bound by the tactical decision he made at trial.
 See State v. McCarthy, __ Vt. __, __, 589 A.2d 869, 876 (1991) (Morse, J.,
 dissenting) ("adversarial system of justice favors a neutral court allowing
 the advocates, within bounds, to try the case before it as they wish");
 Craig v. State, 484 N.E.2d 566, 567-68 (Ind. 1985) (defendant who won motion
 to have separately charged felony treated as lesser-included offense to
 companion charge, and was convicted of the lesser offense, was barred on
 appeal from complaining that felony was not properly a lesser-included
 offense).
      Defendant thus received the benefit he sought in that he was found
 guilty of the lesser offense.  If error occurred, it was invited by defend-
 ant and will not be used by us as a basis for reversal.
                                    III.
      Defendant's third claim of error is that the court erred in allowing a
 police detective to testify on direct examination that defendant had
 admitted "what had happened was a problem; that he had had a problem before
 that he sought counselling for."  Defendant argues that this testimony
 constituted evidence of prior bad acts that should not have been admitted,
 because its only purpose was to show that defendant was a man of bad
 character who had a predisposition to sexual aggression.  See V.R.E. 404(b);
 State v. Catsam, 148 Vt. 366, 380, 534 A.2d 184, 193 (1987).  The court
 admitted the testimony, balancing its probative value against its preju-
 dicial effect under V.R.E. 403.
      The detective's testimony triggered Rule 404(b) because it tended to
 undermine defendant's character by its implication of prior bad acts.  It
 was also, however, a virtual admission by defendant that the women did not
 consent to his advances, a fact that was relevant to proof of the sexual
 assault charges.  Rule 404(b) does not require the exclusion of evidence of
 bad acts if the evidence is also relevant to another issue, such as know-
 ledge or intent, as long as its probative value is not substantially
 outweighed by the danger of unfair prejudice.  State v. Bruyette, No. 90-
 098, slip op. at 5 (Vt. Jan. 10, 1992).  In the instant case, the court
 decided that the testimony was relevant to the issue of consent and was not
 unduly prejudicial.  We will not disturb its ruling absent an abuse of
 discretion.  In re S.G., 153 Vt. 466, 473, 571 A.2d 677, 681 (1990).  We
 find no such abuse herein, where no details of defendant's prior "problem"
 were provided, and defendant had stated to the detective that he knew what
 he had done was wrong.
                                     IV.
 Finally, defendant claims that he is entitled to be resentenced because
 the court did not follow V.R.Cr.P. 32(c)(4) (FN3) when it heard defendant's
 timely motion to strike a portion of the presentence report (PSI).  Defend-
 ant objected to a statement by the babysitter to a probation official that
 she had suffered bruises on her thighs and legs as a result of defendant's
 conduct.  Defendant offered portions of the victim's deposition and trial
 testimony, as well as her statement to the police, to show that she had
 never before complained of any injuries.  The State argued that the state-
 ment in the PSI was consistent with the victim's testimony that defendant
 had used force, and asked the court to rely on the report as well as the
 victim's trial testimony.  The State also noted that the victim was
 present, but would prefer not to testify further.  The court denied defend-
 ant's motion in the following colloquy:
           Court:  I think this is a balanced statement.  [The
           victim] reported to the probation officer that she
           received bruises.  On the other hand, as she defines
           them, she did not have injuries or need for medical care
           or counseling.  If you want to submit your own version
           of the defendant's version, I will append that to the
           [presentence report].

           Counsel: And the court is not going to strike the
           factual representation . . . ?

           Court:  About leaving bruises?

           Counsel:  Yes.  We're asking you to decide whether or
           not that's a reliable fact based on all the evidence we
           now heard.

           Court:  That is what she reported to the probation
           officer.  I think the probation officer has balanced her
           description of any injuries or results of the incident,
           and I'm not going to change it.
      Defendant argues it was error not to strike the victim's statement
 that she had suffered bruises, because the State did not show and the court
 did not find that her statement was factually reliable.  We agree.  Rule
 32(c) was amended in 1989 to ensure fair procedures in determining and
 relying on presentence information.  The Rule requires the court to make a
 specific finding on the reliability of contested facts in the PSI.  The
 court must find by a preponderance of the evidence that a contested fact is
 reliable or unreliable, or it must indicate that it will not take the con-
 tested fact into account during sentencing.  In the present case, defend-
 ant's evidence challenging the victim's statement was uncontroverted, with
 the exception of the State's general reference to the victim's trial testi-
 mony, which did not establish that she had been injured.  The court's
 failure either to make a finding as to the reliability of the statement or
 to indicate that the statement would not be taken into account in sentencing
 was error.
      It is possible that the victim's statement had no effect on the
 severity of defendant's sentence.  Nevertheless, the PSI remains available
 for use after sentencing by corrections and parole officials, including the
 parole board whenever it considers releasing an inmate on parole.  See 28
 V.S.A. {{ 204(d), 501(c).  Because of the "manifest unfairness" to a
 defendant caused by a defective report, strict compliance with Rule 32 is
 required.  See United States v. Kerr, 876 F.2d 1440, 1445 (9th Cir. 1989)
 (construing nearly identical federal rule, Fed.R.Crim.P. 32(c)).
      The conviction is affirmed; the sentence is vacated and the matter
 remanded for resentencing.

                                              FOR THE COURT:


                                              ____________________________
                                              Associate Justice





FN1.    Defendant asked whether the court's instruction on intent would
 apply to both offenses charged, but made no further reference to the mental
 element of lewd and lascivious conduct.  The court rejected defendant's
 contention that State v. Hurley, 150 Vt. 165, 171, 552 A.2d 380, 386 (1980),
 implies that sexual assault is a specific-intent crime.

FN2.    13 V.S.A. { 2602 states:
     "A person who shall wilfully and lewdly commit any lewd or
     lascivious act upon . . . a child under the age of sixteen years,
     with the intent of arousing, appealing to, or gratifying the lust,
     passions or sexual desires of such person or of such child, shall
     be imprisoned . . . ."

FN3.    V.R.Cr.P. 32(c)(4) provides in pertinent part:
     When a defendant objects to factual information submitted to the
     court or otherwise taken into account by the court in connection
     with sentencing, the court shall not consider such information
     unless, after hearing, the court makes a specific finding as to
     each fact objected to that the fact has been shown to be reliable
     by a preponderance of the evidence, including reliable hearsay.
     If the court does not find the alleged fact to be reliable, the
     court shall either make a finding that the allegation is
     unreliable or make a determination that no such finding is
     necessary because the matter controverted will not be taken into
     account in sentencing.