State v. Benoit

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                                 No. 90-420


 State of Vermont                             Supreme Court

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

 Lansing Benoit                               November Term, 1991


 Matthew I. Katz, J.

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

 E.M. Allen, Defender General, Kerry B. DeWolfe and William Nelson,
   Appellate Attorneys, and Marie Buckley, Law Clerk (On the Brief),
   Montpelier, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ., and Peck, J. (Ret.),
           Specially Assigned


      ALLEN, C.J.   Defendant appeals his conviction for lewd and lascivious
 behavior in violation of 13 V.S.A. { 2601.  He claims that (1) there was no
 evidence that his actions were "open," as required by { 2601, (2) the state
 police prejudiced him by destroying notes of witness interviews, and (3) the
 trial court improperly instructed the jury to "seek the truth."  We affirm.
      Testimony at trial showed that two girls, B.H., age 11, and D.P., age
 13, were swimming at a swimming hole near their homes while defendant sunned
 himself nearby.  The girls went for a ride in defendant's van and drank
 alcoholic beverages provided by defendant.  Both girls subsequently fell
 asleep in the van.  B.H. was fully clothed when she fell asleep.  D.P.
 testified that when she awoke B.H. was naked and asleep.  She further
 testified that defendant was disrobed, lying directly above B.H. doing
 "push-ups."  When defendant stood, she saw his penis.  B.H. remembered
 nothing except waking up naked.
      The State originally charged defendant with sexual assault.  Prior to
 trial, the State filed a second information alleging lewd and lascivious
 conduct in violation of 13 V.S.A. { 2601.  The second information charged
 defendant with "removing all of B.H.'s clothing."  The two charges were
 joined for trial.  During discovery, the defense learned that a state police
 detective had destroyed handwritten notes he made during initial interviews
 with B.H. and D.P.  Prior to destroying the notes, the officer incorporated
 them into a written report.  The defendant moved to exclude the testimony of
 the victim, the witness and the officer, arguing that the State prejudiced
 him by failing to preserve discoverable material.  The trial court denied
 the motion.  Defendant also moved for judgment of acquittal asserting that
 the State failed to prove that his conduct was "open," as required by 13
 V.S.A. 2601.  The trial court also denied that motion.  During jury
 instructions, the trial judge twice referred to a jury's duty to "seek the
 truth."  The defendant argued that this language denied him a fair trial by
 improperly stating the State's burden of proof.
                                     I.
      Defendant argues that because the information charged defendant with
 violating 13 V.S.A. { 2601 "by removing all of B.H.'s clothing," his
 conviction cannot be sustained.  He argues that the State introduced no
 evidence that anyone witnessed the undressing of B.H. and that an
 unwitnessed act does not violate the statute, which requires "open" lewd and
 lascivious behavior.
      Section { 2601 prohibits "open and gross lewdness and lascivious
 behavior."  The term "open" means "undisguised, not concealed" and requires
 no more than one witness.  State v. Millard, 18 Vt. 574, 578 (1846).
      Defendant would have us confine our analysis to those few moments
 during which he removed B.H.'s clothing.  This we are unwilling to do.  The
 necessary consequence of the removal of B.H.'s clothing was the exposure of
 her naked body.  Defendant made no attempt to shield the result of the
 undressing from D.P., who witnessed B.H.'s naked body upon awakening.
 Although the State could have charged defendant with exposing his genitals
 to D.P., the behavior charged -- the removal of B.H.'s clothing -- was
 sufficiently open to support the conviction.  Given the evidence that D.P.
 observed B.H.'s naked body, the trial court properly denied defendant's
 motion for judgment of acquittal.
                                     II.
      Defendant next argues that the trial court erred by denying his motion
 to exclude the testimony of B.H., D.P., and the state police detective who
 initially interviewed them.  Defendant claims that the detective's failure
 to preserve handwritten notes of his initial interviews with B.H. and D.P.
 deprived defendant of his due process right to a fair trial.  We disagree.
      The trial court applied the balancing test set forth in State v.
 Bailey, 144 Vt. 86, 95, 475 A.2d 1045, 1050 (1984), and determined that the
 failure to preserve the notes did not deprive defendant of a fair trial.  As
 we held in State v. Seifert, 151 Vt. 66, 70, 557 A.2d 494, 497 (1989),
 however, analysis of whether the trial court properly applied the Bailey
 factors is no longer necessary due to subsequent holdings of the United
 States Supreme Court.  In  Arizona v. Youngblood, 488 U.S. 51, 58 (1988),
 the Supreme Court held that "unless a criminal defendant can show bad faith
 on the part of the police, failure to preserve potentially useful evidence
 does not constitute a denial of due process of law."
      Defendant alleges no bad faith on the part of the detective who
 destroyed the notes, and the court found no indication that he acted in bad
 faith.  Absent bad faith, the destruction of the notes did not deprive
 defendant of his right to a fair trial as guaranteed by the Fifth Amendment
 to the United States Constitution.  The trial court did not err when it
 denied defendant's motion to exclude testimony of B.H., D.P., and the
 officer.
                                    III.
      Finally, defendant claims that the trial court improperly instructed
 the jury on the State's burden of proof.  He objected, both at the charge
 conference and following the court's instructions to the jury, to two
 statements that the jury's role is "to seek the truth."  These statements,
 he argues, fail to convey that a criminal defendant can be convicted only
 on proof beyond a reasonable doubt.
      We disagree that these statements constitute error.  There is no error
 if the charge as a whole conveys the "true spirit and doctrine of the law,
 and there is no fair ground to say the jury has been misled by it."  State
 v. Williams, 154 Vt. 76, 81, 574 A.2d 1264, 1267 (1990).  Defendant bases
 his objection to the charge on two excerpts.  The trial judge, however,
 began his charge to the jury by telling them to consider the instructions
 "as a whole."  After stating the presumption of innocence, the judge
 articulated the State's burden to prove defendant guilty "beyond a
 reasonable doubt" on no fewer than six occasions.  Later in the charge, when
 instructing the jury on the elements of lewd and lascivious behavior, the
 trial judge twice stated that the State would have to prove defendant guilty
 beyond a reasonable doubt on each element of the crime.  The trial court's
 charge, taken as a whole, correctly conveyed to the jury the State's burden
 of proof.
      Affirmed.

                                         FOR THE COURT:




                                         Chief Justice