State v. Jarry

ENTRY_ORDER.93-136; 161 Vt. 629; 641 A.2d 364

[Filed 28-Feb-1994]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 93-136

                             FEBRUARY TERM, 1994


 State of Vermont                  }          APPEALED FROM:
                                   }
                                   }
      v.                           }          District Court of Vermont,
                                   }          Unit No. 3, Caledonia Circuit
                                   }
 Robert Jarry                      }
                                   }          DOCKET NO. 318-5-92Cacr


              In the above entitled cause the Clerk will enter:

      Defendant Robert Jarry was charged with engaging in a sexual act with a
 person under sixteen years of age in violation of 13 V.S.A. { 3252(a)(3).
 He was giving the fourteen-year-old victim a ride home in St. Johnsbury when
 he allegedly pulled into a parking lot, ordered her to remove her pants, and
 had intercourse with her.  A jury convicted him and he appeals.  We affirm.

      The only medical evidence came from Dr. Keith Fortier, a gynecologist
 whom the victim saw four days after the incident.  Dr. Fortier testified
 that because of the four-day time lapse, he "couldn't tell one way or the
 other from her exam" whether she had had intercourse on the night she
 claimed defendant assaulted her.

      Defendant's first claim on appeal is that the court erred in ruling
 that he could not elicit testimony from Dr. Fortier regarding the fact that
 the victim had chlamydia, a sexually transmitted disease, and about other
 examination findings that might tend to show she had had sexual intercourse
 with other partners.  In the alternative, defendant claims the court erred
 in refusing to strike the doctor's testimony entirely and instruct the jury
 to disregard it.

      At trial, the defense asked Dr. Fortier if he had taken a chlamydia
 specimen from the victim, and the State objected.  Arguing before the court
 outside the hearing of the jury, the defense contended that the State had
 opened the door to cross-examination on the issue of chlamydia by having the
 doctor testify.  The testimony was probative, the defense argued, because
 defendant had tested negative for chlamydia almost four months after the
 alleged assault.  The State contended that it had not opened the door
 because it had not offered evidence that the victim was a virgin prior to
 the alleged assault, and that it offered the doctor's testimony to counter
 defense counsel's opening statement that "there are no corroborating bits of
 evidence that support [the victim's] description of what happened."  The
 State's position was that the doctor's findings on intercourse were

 

 probative to show the victim had been examined as part of a rape protocol
 and that intercourse on the night of the assault had not been ruled out.

      The court barred any inquiry into the victim's chlamydia under the
 Rape Shield Statute, 13 V.S.A. { 3255, because the testimony would bear on
 the victim's prior sexual conduct and was not included in any of the
 statutory exceptions.  See id. { 3255(a)(3).  During voir dire, Dr. Fortier
 testified that defendant's negative culture for chlamydia months after the
 assault would not lead to a conclusion one way or the other as to whether he
 had had intercourse with the victim on the night of the assault.  The court
 ruled that defendant had not shown that the probative value of the testimony
 on chlamydia outweighed its prejudicial effect to the victim.  See id.  For
 the same reason, the court barred the defense from exploring the victim's
 sexual history by questioning the doctor on other aspects of his examin-
 ation.  We find no abuse of discretion in the trial court's disallowance of
 any line of questioning bearing on the victim's prior sexual conduct.  See
 State v. Lavalette, 154 Vt. 426, 428, 578 A.2d 108, 109 (1990) (trial court
 has discretion under 13 V.S.A. { 3255 to exclude evidence of prior sexual
 conduct).

      Defendant's reliance on State v. Messier, 146 Vt. 145, 499 A.2d 32
 (1985), is of no avail.  In Messier the identity of the perpetrator was the
 issue.  The defense used some body sample evidence it had previously suc-
 cessfully moved to suppress.  The court allowed the State to rebut the
 exculpatory effect of the partial use of the suppressed evidence by intro-
 ducing the rest of the suppressed evidence.  Id. at 152-53, 499 A.2d at 38-
 39.  Here, by contrast, the doctor stated his complete, albeit inconclusive,
 findings concerning whether or not the victim had had intercourse on the
 night of the assault, none of which had previously been suppressed.
 Evidence of chlamydia was intended to prove another issue, whether defendant
 had had intercourse with the victim on that night.  See State v. Ervin, 723 S.W.2d 412, 415 (Mo. Ct. App. 1986) (upholding refusal to allow testimony
 that victim had gonorrhea and that defendant had not contracted the disease,
 where there was only a 33 1/3% chance he would have contracted the disease
 during intercourse with victim, and where testimony would have "inflammatory
 and prejudicial impact[]").

      In the alternative, defendant claims that the court should have granted
 his motion to strike the doctor's testimony entirely and to instruct the
 jury to disregard it.  Defendant contends that the doctor's inability to
 conclude whether or not the victim had had sexual intercourse on the night
 of the alleged assault raised an inference of guilt because a jury would
 assume fourteen-year-old girls are not sexually experienced.  Since defend-
 ant was barred from presenting evidence of this victim's prior sexual
 experience, any evidence other than evidence of virginity would tend to
 establish the fact of the assault.  We cannot agree.  It is equally likely
 that the jury would draw the opposite inference:  if the doctor had no
 conclusive evidence of intercourse, no assault occurred.  We note, moreover,
 that defendant's question regarding the specimen for chlamydia remained on
 the record, as did the doctor's testimony under defense questioning that he
 found no tearing or bruising of the victim's vagina.  There was no error in
 the court's denial of defendant's motion to strike.

 

      Defendant's second claim is that the information failed to charge a
 criminal offense because it omitted an essential statutory element, namely,
 that the parties not be married to each other.  This is not an element of
 the crime, however; it is an exception to the crime.  See 13 V.S.A. {
 3252(3) (prohibiting sexual contact with another person under the age of
 sixteen "except where the persons are married to each other and the sexual
 act is consensual").  Although we have held that the information must
 contain the elements of an offense, State v. Kreth, 150 Vt. 406, 408, 553 A.2d 554, 555 (1988), we have not found it necessary to specifically negate
 statutory exceptions, State v. DeLaBruere, 154 Vt. 237, 278, 577 A.2d, 254,
 276 (1990).  The affidavit in this case contained sufficient detail to
 notify defendant of the charge and allow him to form a defense.  See id. at
 277, 577 A.2d  at 276.  There was testimony that the victim was not married
 to defendant, and in its closing argument the State told the jury that to
 convict it must find that the parties were not married.  In addition, the
 jury instructions included the complete text of the statute.  The omission
 of the statutory exception in the information in this case was not error.

      Affirmed.



                                    BY THE COURT:


                                    _______________________________________
                                    Frederic W. Allen, Chief Justice

                                    _______________________________________
                                    Ernest W. Gibson III, Associate Justice

                                    _______________________________________
                                    John A. Dooley, Associate Justice

                                    _______________________________________
                                    James L. Morse, Associate Justice
 [ ]  Publish
                                    _______________________________________
 [ ]  Do Not Publish                Denise R. Johnson, Associate Justice