State v. Fuller

Annotate this Case

State v. Fuller (95-534); 168 Vt. 396; 721 A.2d 475

[Opinion Filed 11-Sep-1998]
[Motion for Reargument Denied 4-Oct-1998]

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. 95-534

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Rutland Circuit

Kenneth Fuller September Term, 1997

Theresa S. DiMauro, J.

Peter R. Neary, Rutland County Deputy State's Attorney, Rutland, for
Plaintiff-Appellee.

Robert Appel, Defender General, Henry Hinton, Appellate Attorney,
Montpelier, and Kenneth Fuller, pro se, Swanton, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

SKOGLUND, J. Defendant Kenneth Fuller appeals his conviction for
aggravated sexual assault of his step-son in violation of 13 V.S.A. §
3253(a)(9). Defendant contends that (1) the evidence was insufficient to
permit his conviction for violating 13 V.S.A. § 3253(a)(9); and, (2) the
trial court denied defendant his federal and state constitutional rights to
confront an adverse witness and to call for evidence in his favor by
excluding Donna Fuller's (defendant's wife) out-of-court statements made
to a third party, and by excluding letters written by Ms. Fuller, and
mailed to defendant while he was in jail. We affirm.

Defendant and Ms. Fuller were married in 1993. Ms. Fuller has one
son, S.E., from a previous relationship. At the time of the incident, S.E.
was eleven years old. According to S.E., one evening while Ms. Fuller was
at work and defendant and S.E. were at home alone, defendant purchased beer
and forced S.E. to drink some of it. Soon afterwards, S.E. felt tired and
went into a bedroom to sleep. Defendant followed S.E. into the bedroom and
laid down next to the boy on the bed. While talking to S.E. about sex,
defendant pulled down his pants

and began to masturbate. Realizing what defendant was doing, S.E.
attempted to get off of the bed but defendant grabbed the boy, pulled down
S.E.'s pants, and placed his mouth on S.E.'s penis for five to ten seconds.
S.E. was finally able to escape and ran into the living room. Defendant
followed S.E. into the living room, threw the boy onto a couch, and again
placed his mouth on S.E.'s penis for approximately a minute.

About one week later, S.E. informed Ms. Fuller about the sexual
assault. According to Ms. Fuller, when she confronted defendant about the
allegation, he initially denied it but later admitted the offense. In
addition, Ms. Fuller related the boy's allegation to her sister during a
telephone call. The sister reported the incident to the Department of
Social and Rehabilitation Services (SRS). Approximately one month later,
SRS interviewed the boy and Ms. Fuller. At that time, they both denied
that any sexual assault had occurred. Ms. Fuller also denied that she had
talked to her sister about such an incident.

A few months later, however, after defendant was arrested for a
domestic altercation between defendant and Ms. Fuller, S.E. and Ms. Fuller
reported the alleged sexual assault to the police. While defendant was
being held in pretrial confinement on the aggravated domestic assault
charge, Ms. Fuller denied to the defense attorney's investigator that the
sexual assault took place. About one month after defendant's arrest for
domestic assault and while still in pretrial confinement, defendant was
charged with aggravated sexual assault of S.E.

At his trial for aggravated sexual assault, defendant maintained his
innocence and contended that S.E. and Ms. Fuller had concocted the charges
against him because of defendant's abusive conduct towards Ms. Fuller and
the boy's resentment of defendant's intrusion into S.E.'s relationship with
his mother. Furthermore, defendant asserted that Ms. Fuller's sister had
falsely reported the sexual abuse claim to SRS so as to wrest custody of
S.E. away from Ms. Fuller.

In an attempt to prove his theory of the case during cross-examination
of Ms. Fuller, defendant tried to enter into evidence potentially
exculpatory statements from two letters Ms. Fuller sent to defendant while
he was in pre-trial confinement for the domestic assault charge

but before he was charged with aggravated sexual assault. At a Rule 104
hearing, without the jury present, the letters were held inadmissible.

Soon after the trial resumed, defendant's attorney received a note
from a man, Ken Harris, which read, "Your client has not done anything to
[S.E.]." After an interview with Mr. Harris, it was determined that Ms.
Fuller and Mr. Harris had dated for several months after defendant was
arrested and awaiting trial and that Ms. Fuller had made potentially
exculpatory statements to Mr. Harris. Upon learning this information,
defendant again attempted to enter into evidence the statements from Ms.
Fuller's letters and, in addition, Mr. Harris's testimony. At a second Rule
104 hearing held outside the presence of the jury, the court again ruled
the letters inadmissible and also found Mr. Harris's testimony
inadmissible.

Defendant was subsequently found guilty of aggravated sexual assault
in violation of 13 V.S.A. § 3523(a)(9) and was sentenced to twenty to forty
years in prison. This appeal followed.

Defendant first contends that the evidence presented at trial was
insufficient to convict him of aggravated sexual assault in violation of 13
V.S.A. § 3253(a)(9). Section 3253(a)(9) states, in relevant part, that
"[a] person commits the crime of aggravated sexual assault if the person
commits sexual assault [and] . . . the victim is subjected by the actor to
repeated nonconsensual sexual acts as part of the same occurrence."
Defendant claims the evidence showed only that "one continuous, very brief
episode motivated by a single impulse interrupted" had occurred and,
therefore, he could be convicted only of sexual assault in violation of 13
V.S.A. § 3252. Defendant reasons that, because the sexual assault of S.E.
in the bedroom lasted only five to ten seconds and then quickly recommenced
in the living room after S.E. escaped from the bedroom, the evidence was
insufficient to prove "repeated nonconsensual sexual acts."

We recognize the rebuttable presumption that the crime of sexual
assault is not a continuous offense and, therefore, each assault
constitutes a separate and distinct offense. See Harrell v. Wisconsin, 277 N.W.2d 462, 472 (Wis. Ct. App. 1979) (stating although sexual

abuse or sexual gratification may constitute goal of assault, course of
defendant's conduct to effectuate single goal is not necessarily single
offense because single criminal goal may be effectuated by multiple
criminal acts that are separate and distinct offenses); cf. Missouri v.
Dennis, 537 S.W.2d 652, 654 (Mo. Ct. App. 1976) (rape is not continuous
offense); Lillard v. Tennessee, 528 S.W.2d 207, 211 (Tenn. Crim. App. 1975)
(defendant who raped woman once may not again assault and ravish her with
impunity at another time and place). To hold otherwise, "deprecates the
heinous and violent nature of each act and the effect each act has upon the
victim." Illinois v. Smith, 616 N.E.2d 737, 742 (Ill. App. Ct. 1993). As
one of our sister states noted:

Repeated acts of forcible sexual assault are not to be construed as
a roll of thunder, -- an echo of a single sound rebounding until
attenuated. One should not be allowed to take advantage of the
fact that he has already committed one sexual assault on the victim
and thereby be permitted to commit further assaults on the same
person with no risk of further punishment for each assault
committed. Each act is further denigration of the victim's integrity
and a further danger to the victim.

Harrell, 277 N.W.2d at 469.

In deciding whether an incident of sexual assault consists of one
continuous assault or separate acts, we consider several factors,
including: the elapsed time between successive parts of the defendant's
conduct; whether the defendant's conduct occurred in more than one
geographic location; whether an intervening event occurred between
successive parts of the defendant's conduct; whether there was sufficient
time for reflection between assaultive acts for the defendant to again
commit himself. See Smith, 616 N.E.2d at 741-42.

Admittedly, defendant's conduct in the bedroom and the living room was
close in time. There was, however, an intervening event between the two
acts -- S.E.'s escape from defendant and his flight from the bedroom into
the living room. Most importantly, defendant had sufficient time between
the commission of the two acts to reflect upon what he was doing and to
recommit himself to sexually assaulting the child that had escaped. See
Harrell, 277 N.W.2d at 470 (even more germane than the time interval is
fact defendant formed intent to again assault

victim and again applied force necessary to accomplish his purpose).

Defendant's reliance on State v. Perrillo, 162 Vt. 566, 649 A.2d 1031
(1994) is misplaced. Perrillo was charged with two violations of 13 V.S.A.
2602, which proscribes "any lewd or lascivious act upon or with the body,
or any part or member thereof, of 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 person." In Perrillo,
defendant carried his victim to a couch and proceeded to touch the victim's
chest and then her genitals. Neither Perrillo nor the victim left the
couch during the commission of the crime and, according to the victim, the
incident lasted "about a few minutes or so." Perrillo, 162 Vt. at 567, 649 A.2d at 1032. Perrillo was found guilty of, one, placing his hand inside
the victim's pants and rubbing his hand on her vulva and, two, putting his
hand inside the victim's shirt and rubbing her chest. On appeal, Perrillo
contended that the sentence of five to ten years (two to five years
consecutive on each count) doubled the allowable penalty intended by the
legislature for the crime. See id. We reversed his conviction, holding
that "[b]ecause a single episode of sexual misconduct ordinarily involves
the wrongdoer touching the victim more than once, we do not think the
legislature intended to increase the potential sentence for these crimes
exponentially depending on the number of touches involved in a single
episode of sexual abuse." Id. at 567-68, 649 A.2d at 1032.

Unlike Perrillo, defendant in the present case was not charged with
violating § 2602 but, instead, was charged with violating § 3253(a)(9),
which expressly proscribes "repeated nonconsensual sexual acts." Thus, the
holding in Perrillo is not dispositive here. Furthermore, unlike the
present case, Perrillo's actions happened close in time, they were
uninterrupted and occurred in the same geographic location, and there was
no evidence suggesting any time between touches for Perrillo to reflect on
his conduct and recommit himself to abusing the victim, thereby making it
more likely that his actions constituted one continuous lewd act.

In this case, however, there were two sexual assaults. Defendant's
argument that his actions were but "one continuous episode motivated by a
single impulse interrupted" suggests

that, because he was prevented from satisfying his "single impulse" in the
bedroom, his actions in the living room should not subject him to
additional punishment. The Legislature did not make such distinctions in
the statute. The first sexual assault ended when S.E., as he testified,
finally got defendant off and he ran into the living room. The second
sexual assault occurred in the living room when defendant threw S.E. on the
couch and "did it again."

Finally, defendant suggests that the Legislature did not contemplate a
conviction of aggravated sexual assault based on a finding of two separate
sexual acts on the facts presented in this case and, that, because the act
intended to be proscribed by § 3253(a)(9) is ambiguous, the rule of lenity
requires that doubts be resolved in favor of defendant. See State v.
Sidway, 139 Vt. 480, 484, 431 A.2d 1237, 1239 (1981). We do not find the
requisite ambiguity.

"[W]here the meaning of a statute is plain and unambiguous, we are
required to enforce it according to its terms, without resort to statutory
construction." In re Hough, 143 Vt. 15, 19, 458 A.2d 1134, 1136 (1983).
The statute distinctly provides that a person commits an aggravated sexual
assault when the victim is subjected to "repeated nonconsensual sexual acts
as part of the same occurrence." 13 V.S.A. § 3253(a)(9). When a word in a
statute is not defined, we are required to give the word its plain and
commonly accepted meaning. See Vincent v. Vermont State Retirement Bd.,
148 Vt. 531, 535-36, 536 A.2d 925, 928 (1987). "Occurrence" is a synonym
for an "event." Black's Law Dictionary 974 (5th ed. 1979). An "event" is
"that in which an action, operation, or series of operations, terminates,"
id. at 498 (emphasis added), and an "operation" is defined as an "exertion
of power," id. at 984. Thus, an "occurrence" can be defined as a completed
series of exertions of power. The Legislature's intent is clear; repeated
sexual assaults during an assaultive course of conduct or series of
exertions of power will result in harsher punishment. Because the
statute's intent is unambiguous, defendant is not helped by the rule of
lenity. See United States v. Litchfield, 986 F.2d 21, 22 (2nd Cir. 1993)
("Where statutory . . . provisions unambiguously cover the defendant's
conduct, the rule [of lenity] does not come into play.").

In conclusion, the language of § 3253(a)(9) is clear and unambiguous.
Because the

evidence was sufficient to convict defendant for two separate sexual
assaults (one in the bedroom and one in the living room), because defendant
had sufficient time to reflect and recommit himself to sexually assaulting
S.E. after S.E. escaped and fled to the living room, and because S.E. was
subjected to separate and additional fear, humiliation, and danger, we
conclude there was sufficient evidence to prove that during the same
occurrence S.E. was subjected to repeated nonconsensual sexual acts by
defendant in violation of § 3253(a)(9).

II.

Defendant next contends that his right of confrontation, guaranteed
under the federal and state constitutions, was abridged by the two
evidentiary rulings of the court that excluded Mr. Harris's testimony and
the two statements in Ms. Fuller's letters. See U.S. Const. amend. VI; Vt.
Const. ch. I, art. 10.(FN1) We disagree.

The Sixth Amendment, which encompasses the "right to conduct
reasonable cross-examination," Olden v. Kentucky, 488 U.S. 227, 231
(1988), is applicable to proceedings in Vermont courts by its incorporation
in the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 405
(1965). The United States Supreme Court has declared that
cross-examination is potentially the "greatest legal engine ever invented
for the discovery of truth," California v. Green, 399 U.S. 149, 158 (1970),
and has found it to be the "principal means by which the believability of a
witness and the truth of his testimony are tested . . . [by] exposure of a
witness' motivation in testifying," Davis v. Alaska, 415 U.S. 308, 316-17
(1974). Cross-examination forces the witness "to stand face to face with
the jury in order that they may look at him, and judge by his demeanor upon
the stand and the manner in which he gives his testimony whether he is
worthy of belief." Kentucky v. Stincer, 482 U.S. 730, 736-37 (1987).

We have also consistently recognized the paramount importance of
cross-examination and

have permitted the defendant "wide latitude . . . on cross-examination for
the purpose of showing who and what the witness is, and that [she] is
unreliable, prejudiced, or biased." State v. Berard, 132 Vt. 138, 147, 315 A.2d 501, 508 (1974). This wide latitude, especially when the evidence
consists of the testimony of an individual who might be "motivated by
malice, vindictiveness, intolerance, prejudice, or jealousy," allows the
defendant "to establish the identity of the witness so that the jury can
place the witness in his environment, know who he is, and weigh his
evidence." Raymond, 148 Vt. at 619-20, 538 A.2d at 165-66 (citations
omitted).

This "wide latitude," however, has its limits. To raise a successful
challenge under the confrontation clause, the excluded evidence must be
admissible. See V.R.E. 402 (while evidence which is not relevant is not
admissible, relevant evidence is admissible, unless it is limited by
constitutional requirements, statute, evidentiary rules, or other rules
prescribed by this Court); State v. Patnaude, 140 Vt. 361, 370, 438 A.2d 402, 405 (1981) (defendant not entitled to weigh his confrontation interest
against State's interests unless the evidence offered passes tests of
logical and legal relevancy). In determining whether evidence is
admissible, the trial judge has broad discretion, see Reporter's Notes,
V.R.E. 402, and, therefore may impose reasonable limits on the scope of a
defendant's cross-examination if it is "based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness
safety, or interrogation that is repetitive or only marginally relevant."
Raymond, 148 Vt. at 620, 538 A.2d at 166 (quoting Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986)); see also State v. French, 152 Vt. 72, 80, 564 A.2d 1058, 1062 (1989) (discretion lies in trial judge to weigh such
cross-examination, comparing its probative value and its prejudice to
witness); V.R.E. 403 "The admissibility of evidence is addressed to the
discretion of the trial judge, and this Court will reverse only if the
trial judge has abused that discretion." State v. Goodnow, 162 Vt. 527,
530-31, 649 A.2d 752, 755 (1994). We now turn to the substance of
defendant's appeal.

During Mr. Harris's deposition, he claimed Ms. Fuller had stated that
"[s]he was not sure if it all came down and wasn't sure that it happened at
all," in reference to defendant's sexual assault charge.(FN2) At the
beginning of the Rule 104 hearing, defendant stated he wanted to use this
statement to impeach Ms. Fuller's credibility. Following a lengthy and
confusing colloquy, the court noted that Mr. Harris's statement reporting
Ms. Fuller's uncertainty the sexual assault occurred was both irrelevant
and cumulative for the purpose of impeaching Ms. Fuller.

After a discussion concerning another alleged statement attributed to
Ms. Fuller by Mr. Harris concerning Ms. Fuller's sister, the court returned
to the admissibility of the above statement and asked defense counsel
"Aren't you trying to attack [S.E.'s] credibility with Donna Fuller's
belief or uncertainty as to whether or not this happened?" Defense counsel
replied, "Yes." Following another brief discussion, a recess was called to
take care of court business. When the hearing resumed the prosecutor noted
that the trial court had not given a "per se" ruling regarding the
admissibility of Mr. Harris's testimony, to which defense counsel added
that a ruling was needed "Just so it's clear on the record." The court
first expressly noted that defendant was offering Ms. Fuller's purported
statement through Mr. Harris in order to impeach S.E.'s credibility and
then ruled that it was inadmissible because a lay person is not allowed to
testify or vouch for the credibility of the victim. Furthermore, the court
ruled that, because the statement was hearsay, it was inadmissible to show
that the assault did not occur.(FN3) Defendant now appeals, claiming that he
intended to use Mr. Harris's testimony to impeach both the credibility of
Ms. Fuller and S.E., and that it was error to exclude Mr. Harris's
testimony.

First, we note that during the Rule 104 hearing, defendant's offer of
proof -- vague as it was -- underwent substantial change, from impeachment
of Ms. Fuller to impeachment of S.E. Notwithstanding the alteration, the
court's early ruling that the statement was both irrelevant and cumulative
for the purpose of impeaching Ms. Fuller effectively addressed defendant's
initial offer. The Court agrees that Ms. Fuller's alleged statement of
uncertainty, made to a new boyfriend while defendant was incarcerated had
little if any relevance to her truthfulness. Mr. Harris's hearsay
statement lacked context, focus, and specificity. Further, there was
substantial and more persuasive other evidence admitted to impeach Ms.
Fuller's credibility, including Ms. Fuller's inconsistent statements to the
police. We conclude that the trial court did not err in ruling Mr.
Harris's testimony inadmissible as to Ms. Fuller.

We now address defendant's second contention that he intended to
impeach S.E. with Mr. Harris's testimony. The court excluded Mr. Harris's
testimony on the grounds that if an expert witness is not allowed to
"comment on the truthfulness of the complaining witness in a child sexual
abuse case," State v. Gomes, 162 Vt. 319, 328, 648 A.2d 396, 403 (1994),
then it is also impermissible to permit a lay person to testify to the
same. While we decline to review the court's rationale for finding the
statement inadmissible, we conclude that result was correct. Cf. Perrott
v. Johnston, 151 Vt. 464, 466, 562 A.2d 459, 461 (1989) (Court will affirm
judgment which is correct even if grounds stated in support are erroneous).

A witness's credibility may be impeached in a number of different
ways. See generally Reporter's Notes, V.R.E. 607. The rules and the
common law permit one to attack a witness's credibility through the use of:
(1) opinion or reputation evidence, which refers "only to [witness's]
character for truthfulness or untruthfulness," V.R.E. 608(a); (2) certain
prior convictions and misconduct of the witness, see V.R.E. 609; V.R.E.
608(b); (3) certain prior inconsistent statements made by the witness, see
V.R.E. 613; and (4) evidence "showing personal bias, financial interest, .
. . lack of capacity to observe or remember, or by contradictory evidence
or self-contradictory cross-examination." Reporter's Notes, V.R.E. 607.

Defendant contends that, because S.E.'s mother was not sure the crime
took place, S.E.'s

character for truthfulness was therefore impugned. Ms. Fuller's doubts as
to whether the sexual assault occurred, offered through the testimony of a
third person, is not the type of evidence normally admitted for impeachment
purposes. Her alleged statement was not an assertion of an opinion on
S.E.'s character for truthfulness. The statement offered through Mr.
Harris is hearsay and only relevant if offered for the truth of the matter
asserted. See V.R.E. 801(c). Therefore, the court did not err in excluding
the inadmissible impeachment evidence. See Van Arsdall, 475 U.S. at 679
(Confrontation Clause guarantees opportunity for effective cross-
examination, not cross-examination effective in whatever way and to
whatever extent defense might wish).

Defendant also contends that the court erred in ruling that the two
statements contained in Ms. Fuller's letters were inadmissible.(FN4) The
first of Ms. Fuller's statements that defendant wanted to introduce was:

Now with this court thing I'm really scared. I don't know how
I'm going to get through the next days or weeks, I am intimidated
by [the prosecutor] to the extent when I think about it my ears start
ringing and I feel like I'm having a panic attack, I can just imagine
how you feel. It's your life on the line. I put you there and now
I have to try to get you out, what a mess. I wish we could either
turn back the clock or zoom it ahead and have this over.

The second statement was "I don't know why I'm feeling sorry for myself. I
guess it's because of this great big huge mess that's bigger than the world
and I'm scared because I don't understand the law and I'm afraid of what
[the prosecutor] and the judge will do to me for lying." Defendant offered
the statements to impeach the credibility of Ms. Fuller and to show that
Ms. Fuller had felt intimidated by the prosecutor.

At the Rule 104 hearing on this offer, evidence was presented that Ms.
Fuller had been a hostile witness in the prosecution of defendant's
aggravated domestic assault charge, and that this had provided her with the
opportunity to form an opinion of the prosecutor. Furthermore, it was
shown that Ms. Fuller had not spoken with the prosecutor about defendant's
aggravated sexual assault charge at the time the letters were written. The
court found that: (1) Ms. Fuller never had a conversation with the
prosecutor named in the letters; (2) if the letters were admitted, the
prosecution would be permitted to bring into evidence defendant's
prosecution for aggravated domestic assault to explain to the jury how Ms.
Fuller knew the prosecutor; and (3) defendant did not bring these letters
up until the middle of the trial. Thus, the court concluded that the
statements were inaccurate and that the potential prejudicial effect to
defendant far outweighed their probative value. Furthermore, the court
noted that defendant had sufficient admissible evidence with which to
impeach Ms. Fuller, including Ms. Fuller's prior inconsistent statements to
the police and defendant's investigator. The statements were, therefore,
ruled inadmissible.

We agree with defendant that the court erred in finding the statements
inadmissible. The fact that Ms. Fuller never had a conversation with the
prosecutor goes to the weight of the evidence, not its admissibility.
Second, if defendant wanted to take a recognized risk that the state would
use his prior conviction to explain the impeachment evidence, there is no
rule or statute that bars him from exposing his prior conviction to the
jury. Finally, there was no requirement to disclose impeachment evidence
to opposing counsel prior to trial.

While we conclude that defendant should have been permitted to impeach
Ms. Fuller's credibility with her letters, we must determine whether the
court's ruling amounted to harmless error. See Van Arsdall, 475 U.S. at
684; V.R.Cr.P. 52(a) ("Any error, defect, irregularity or variance which
does not affect substantial rights shall be disregarded."). The "harmless
error" rule has been restated as follows:

Harmless error analysis requires the reviewing court to inquire if,
absent the alleged error, it is clear beyond a reasonable doubt that
the jury would have returned a guilty verdict regardless of the
error. Thus, analysis under the harmless error doctrine focuses on
the evidence of guilt present in the record.

State v. Wright, 154 Vt. 512. 519-20, 581 A.2d 720, 725 (1990). To find
harmless error, we treat the damaging potential of the excluded impeachment
evidence as fully realized, and determine whether the error was harmless
beyond a reasonable doubt. See Van Arsdall, 475 U.S. at 684.

To begin with, the statements in the letters had limited probative
value at best. At the Rule 104 hearing, regarding the statement "I'm
afraid of what [the prosecutor] and the judge will do to me for lying," Ms.
Fuller testified that her fear stemmed from allegedly false, exculpatory
statements she intended to make to defense attorney's private investigator
and not from the inculpatory statements she had already made to the police.
Second, regarding the statement she felt intimidated by the prosecutor,
Ms. Fuller testified that at the time she had written the letters she had
not talked to the prosector about the case but that she had formed her
opinion of him during defendant's trial for domestic abuse. In addition,
in response to a question on recross-examination concerning whether he
thought Ms. Fuller concocted the sexual assault allegations, defendant
conceded that he did not think Ms. Fuller invented these allegations. This
concession was in direct opposition to defendant's theory of the case that
Ms. Fuller had fabricated the sexual assault. It also strengthened Ms.
Fuller's credibility and obviated defendant's use of the proffered evidence
to impeach Ms. Fuller's credibility.

While defendant's concession concerning Ms. Fuller's role in the
allegations confronting him does not specifically refute her testimony
regarding his alleged confession to her, defendant was permitted at trial
to impeach Ms. Fuller's credibility with other evidence showing that she
had made several prior inconsistent statements about the sexual assault.
Given the minimal probative value of the excluded evidence, defendant's
concession that Ms. Fuller's did not fabricate the allegations, defendant's
opportunity to impeach Ms. Fuller's credibility with other evidence, and
the other evidence of defendant's guilt, it is clear beyond a reasonable
doubt that

defendant would have been found guilty even if the proffered evidence had
been admitted. See Van Arsdall 475 U.S. at 686.

Defendant also contends that the court's two evidentiary rulings
abridged his state constitutional right to call for evidence in his favor.
See Vt. Const. ch. I. art. 10 (in all prosecutions for criminal offenses, a
person hath a right to call for evidence in his favor). This assertion
appears in his brief "unaccompanied by facts, law, or reasoning." KPC
Corp. v. The Book Press, Inc., 161 Vt. 145, 152, 636 A.2d 325, 329 (1993).
Because we will not search the record for errors inadequately briefed, see
Bishop v. Town of Barre, 140 Vt. 564, 579, 442 A.2d 50, 57 (1982), we do
not address this claim.

Affirmed.

FOR THE COURT:

_______________________________________
Associate Justice

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Footnotes

FN1. Because he "provides no substantive analysis of the Vermont
Constitution, nor . . . set[s] forth any rationale as to how our analysis
of this constitutional claim should differ under the Vermont Constitution
in comparison with the federal constitution . . . we decline to apply state
constitutional analysis" to defendant's claim. State v. Raymond, 148 Vt.
617, 619 n.1, 538 A.2d 164, 165 n.1 (1989).

FN2. Mr. Harris also claimed that Ms. Fuller had told him that Ms.
Fuller and her sister did not get along and that one of the reasons for
their animosity was that the sister had threatened to take S.E. away from
Ms. Fuller and call the child authorities on her due to her alleged
drinking problem. The court concluded that this statement was irrelevant
and, furthermore, was hearsay. Defendant does not appeal this ruling.

FN3. Defendant does not appeal this ruling.

FN4. Defendant also wanted to enter into evidence two other
statements from Ms. Fuller's letters: (1) "I'm sorry about not getting in
touch with [defendant's investigator] on Monday. [I]t wasn't because I
didn't want to, it was because I couldn't leave the house, I finally had
[S.E.] call and make the arrangements for me and, then I had a set time and
knew I had to go," and (2) "I don't think it's right to lock someone up for
having a fight with [their] spouse." At the first Rule 104 hearing,
however, defendant decided not to use these two statements and does not
allege any error in regard to these two statements.

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Dissenting

No. 95-534

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Rutland Circuit

Kenneth Fuller September Term, 1997

Theresa S. DiMauro, J.

Peter R. Neary, Rutland County Deputy State's Attorney, Rutland, for
Plaintiff-Appellee.

Robert Appel, Defender General, Henry Hinton, Appellate Attorney,
Montpelier, and Kenneth Fuller, pro se, Swanton, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

DOOLEY, J., dissenting. At its heart, this case was a credibility
contest between defendant, who testified, and his thirteen-year-old
step-son, who testified against him. The State, however, had another
evidentiary "ace" in Donna Fuller's testimony that when she confronted
defendant, he confessed to the sexual assault. Thus, defendant had no
chance to prevail unless he could impeach Donna Fuller's credibility.
Defendant s counsel arrived at two main avenues of impeachment, neither of
which reached the jury because the trial court found inadmissible the
evidence on which defendant relied. Because I believe the rulings were
erroneous and could not together be found harmless under the proper
standard of review, I respectfully dissent from the majority opinion
affirming defendant's conviction.

The majority has analyzed in detail the exclusion of the excerpts of
the letters, concluding that the refusal to admit them was erroneous, but
in the context of all the evidence was harmless error. If this had been
the only exclusion, I would probably agree that this error alone should not
warrant a new trial. The exclusion of the letters, however, was the least
prejudicial of the

two errors.

The most important excluded testimony was that of Ken Harris, who came
forward during the trial because he believed defendant was not guilty. Ken
Harris dated Donna Fuller for several months after defendant was arrested
and would have testified that she expressed doubt about whether defendant
committed the sexual assault for which he was being tried. The impeachment
value of this evidence was obvious because Donna Fuller testified that she
believed her son (FN1) and that defendant confessed to her. The majority has
concluded that the trial judge acted within her discretion in excluding the
evidence.(FN2)

As the majority recognizes, exclusion of this evidence can be
justified only if its probative value is clearly outweighed by other
considerations that make it inappropriate for the evidence to reach the
jury. See V.R.E. 403. Therefore, the majority begins by finding that the
evidence had only "little relevance" to Ms. Fuller's truthfulness. I
believe this assessment of probative value is clearly wrong.

Apart from the victim's testimony, the most damning evidence against
defendant was Ms. Fuller's testimony that defendant confessed to her and
that she believed her son. Defendant could prevail in this trial only if
the jury disbelieved Ms. Fuller, at least in part. The testimony of Ken
Harris offered a reason to disbelieve the testimony. If, as Ken Harris
would testify, Ms. Fuller expressed doubt about defendant's guilt to him, a
neutral third party, can it be true that she believed her son and that
defendant had confessed to her? The Harris testimony would have created a
serious discrepancy from which the jury could infer that Ms. Fuller was not
being

truthful.

I also believe that the grounds the majority asserts for excluding the
evidence are wrong. Impeachment evidence can be excluded for reasons like
"harassment, prejudice, confusion of the issues, the witness safety, or
interrogation that is repetitive or only marginally relevant." State v.
Cartee, 161 Vt. 73, 77, 632 A.2d 1108, 1111 (1993) (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986)). None of these reasons apply here to
evidence that could have been presented quickly and for which the relevance
is obvious. Indeed, given the long arguments and discussions the proposed
testimony engendered, it would have been quicker to present it than it was
to exclude it.

Nevertheless, the majority holds that the testimony could be excluded
as cumulative. Rule 403 authorizes exclusion because of "needless
presentation of cumulative evidence." Unless we are going to impose some
sort of impeachment quota, we cannot label the Harris testimony as
cumulative and certainly cannot call it "needless" in view of the testimony
of Ms. Fuller. The fact that defendant had some ability to impeach Ms.
Fuller on other grounds -- that she initially gave a different story to the
police and had a motive to fabricate the accusation against defendant --
does not make it cumulative. See, e.g., United States v. Foster, 982 F.2d 551, 554-55 (D.C. Cir. 1993) (fact that defendant could show that key
witness for prosecution gave incomplete statement to police does not
justify excluding defendant from showing witness also gave incomplete
testimony at preliminary hearing). Oddly, the majority does not find
cumulative the letters even though the content goes directly to the
inconsistencies in her stories to the police and prosecutor, a subject
explored in other evidence. Yet, it finds cumulative a different
inconsistency raised by the testimony of an ostensibly neutral third-party.

In my view, this case is controlled by Cartee and State v. Covell, 146
Vt. 338, 341, 503 A.2d 542, 544 (1985). As we said in Cartee, where the
witness's "credibility was a pivotal issue bearing on defendant's guilt,"
the trial court should be particularly cautious in exercising its
discretion to exclude defendant's impeachment evidence. 161 Vt. at 77, 632 A.2d at 1111.

Because of our harmless error rule, it makes little difference whether
we find the exclusion of Harris's evidence to be a violation of the
Confrontation Clause of the Federal Constitution or an erroneous exclusion
of relevant evidence, not excludable under Rule 403. See V.R.E. 402
(relevant evidence is admissible except as limited by the Constitution,
statute or rule). We can hold an error harmless only if we can find beyond
a reasonable doubt that the error did not affect the result. See State v.
Carter, 164 Vt. 545, 555, 674 A.2d 1258, 1265 (1996)(harmless error
standard is the same for both constitutional and nonconstitutional errors).
Because of the significance and weight of Ms. Fuller's testimony, and the
weight that the jury could have attached to the Harris testimony, either
individually or in combination with the excerpts from Ms. Fuller's letters
to defendant, I cannot conclude beyond a reasonable doubt that the errors
in exclusion of evidence did not affect the result.

Accordingly, I dissent.

_______________________________________
Associate Justice

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Footnotes

FN1. The State emphasizes both here and in the trial court that Ms.
Fuller s belief is irrelevant and inadmissible. Despite that position, the
prosecutor introduced her belief during her direct examination while
questioning her about her initial denial to the police. Ms. Fuller first
testified that she denied that her son had reported that defendant had
sexually assaulted him. The prosecutor then asked You didn't believe it
happened, right? She answered: I believe that it had happened.

FN2. After a long and difficult-to-follow argument, the trial court
ruled that defendant was really trying to attack the credibility of the
victim through Ms. Fuller and ruled that Harris s testimony was
inadmissible for that purpose. That argument was not made on appeal, and I
would not reach it. As the majority holds, the defendant preserved his
argument that the Harris testimony was admissible to impeach Ms. Fuller.

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