State v. Maunsell

State v. Maunsell (98-131); 170 Vt. 543; 743 A.2d 580

[Opinion Filed 24-Aug-1999]
[Motion for Reargument Denied 7-Oct-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-131

                              APRIL TERM, 1999


State of Vermont	               }	APPEALED FROM:
	                               }
	                               }
     v.	                               }	District Court of Vermont,
	                               }	Unit No. 2, Chittenden Circuit
David Maunsell	                       }
	                               }	DOCKET NO. 3357-8-96 Cncr


             In the above-entitled cause, the Clerk will enter:


       Defendant appeals from a judgment of the Chittenden District Court
  entered on a jury  verdict finding him guilty of lewd and lascivious
  behavior in violation of 13 V.S.A. § 2601.  On  appeal, he raises a variety
  of issues, the most significant of which involve the jury instructions, 
  the propriety of considering his lack of remorse in passing sentence and
  matters relating to a  rescinded plea agreement.  We modify the judgment to
  delete certain conditions of defendant's  probation and affirm the judgment
  as modified.

       The trial court denied defendant's motion for a judgment of acquittal
  following the  presentation of the case against him.  Accordingly, "we must
  consider whether the evidence,  taken in the light most favorable to the
  State and excluding the modifying evidence, is sufficient  to fairly and
  reasonably support a finding of guilt beyond a reasonable doubt."  State v.
  Devine,  ___ Vt. ___, 719 A.2d 861, 862 (1998).  Viewed through this lens,
  the relevant facts are easily  summarized.  On the morning of July 26,
  1996, the complaining witness was seated in the  second-floor reading room
  of the library of St. Michael's College in Colchester when she  observed
  defendant, less than eight feet away, massaging his genitals through his
  pants.   Defendant, who testified at trial, stated that he had engaged in
  this behavior because he was "day  dreaming," having considered the sight
  of the victim seated nearby to be "attractive" and  "erotic." 

       On August 18, 1997, defendant appeared in open court to indicate he
  had reached a plea  agreement with the State.  Under that agreement, the
  State would have reduced its charge to that  of a prohibited act of
  lewdness in violation of 13 V.S.A. § 2632(a)(8).  The court accepted the 
  change of plea after making the relevant inquiries as to whether defendant
  was acting on a  knowing and voluntary basis, and entered judgment on it. 
  However, before the matter came up  for sentencing approximately six weeks
  later, defendant moved for a new plea proceeding  alleging that the judge
  who accepted the plea had acted unethically.  At the sentencing hearing, 
  defendant indicated that he did not want to go forward with the agreement. 
  Counsel made clear  his client was acting against his advice; defendant
  noted that five previous attorneys had  withdrawn as his counsel in the
  case. (FN1) The court permitted defendant to withdraw his plea  under
  V.R.Cr.P. 32(d) and carefully explained to defendant that, as a result, the
  plea agreement 

 

  had been rescinded and the original charge of violating 13 V.S.A. § 2601
  would proceed to trial,  which it did on January 6, 1998.  The jury
  returned a verdict of guilty, and the court sentenced  defendant to a
  suspended term of imprisonment of two-to-five years plus probation and
  fifty  hours of community service.  This appeal followed.

       Defendant first challenges the court's instructions to the jury
  concerning the mens rea  element of the charged offense.  The statute
  prohibits "open and gross lewdness and lascivious  behavior."  13 V.S.A. §
  2601.  Concerning this requirement of "open" conduct, defendant  requested
  an instruction that, in order to find him guilty, the jury had to find that
  he intended to  be seen when he fondled himself.  Defendant now concedes
  the "abstract correctness" of the  instructions as actually given but
  contends the court did not adequately distinguish between intent  to commit
  the act and intent that the act be seen by others.  He argues that the jury
  should have  been instructed that if it determined he acted in reckless
  disregard of the possibility he would be  seen, a verdict of not guilty
  would be required.

       We discern no reversible error.  We believe the instructions
  adequately allowed the jury to  consider the defense theory of the case so
  it had to "resolve its truth or falsity by their verdict."   State v.
  Brisson, 119 Vt. 48, 53, 117 A.2d 255, 257-58 (1955).  Moreover,
  defendant's appeal  argument goes beyond what the law required in this
  instance.  In State v. Grenier we rejected a  similar argument, reviewing
  for plain error because the question had not been adequately  preserved at
  trial.  158 Vt. 153, 156, 605 A.2d 853, 855 (1992).  However, the reasoning
  we  adopted in Grenier is dispositive:  "If the Legislature had intended to
  include specific intent" - that, is, an intent to achieve a precise harm
  or result - as an element of the crime set out in §  2601, "it presumably
  would have done so," as it did in 13 V.S.A. § 2602 when enjoining lewd  or
  lascivious conduct with a child.  Id. (noting that court reads scienter
  element into statute only  when necessary to make it effective).  Further,
  defendant bargained away at least part of the  position he now maintains in
  return for the State's agreement not to offer certain evidence, and  his
  post-charge objection, to the extent shown by the transcript, also appears
  not to fully raise his  appeal argument.

       Defendant next invokes our decision in State v. Loveland, 165 Vt. 418,
  684 A.2d 272  (1996), to contend that when the court imposed sentence it
  improperly took into account his  unwillingness to concede the illegality
  of his behavior without offering him immunity for any  statements he might
  make at sentencing.  Loveland concerns a specific problem: the convicted 
  sex offender who testifies at trial that he did not commit the act in
  question but who risks an  enhanced sentence for lack of remorse absent an
  acceptance of responsibility during the  sentencing phase of the
  proceedings. See id. at 422-23, 684 A.2d  at 276.  The situation in the 
  instant case is easily distinguishable because defendant here never denied
  he committed the acts  charged by the State.  When the need to accept
  responsibility at sentencing does not expose the  defendant to possible
  perjury charges arising out of his trial testimony, or compel a waiver of
  the  privilege against self-incrimination, Loveland is not implicated.  See
  State v. Gorbea, ___ Vt.  ___, ___, 726 A.2d 68, 71 (1999) (affirming
  general rule that sentencing court may take  defendant's nonacceptance of
  responsibility into account).  Defendant's argument over the law  did not
  create an unfair restriction on his ability to seek a fair sentence.

       Defendant objects to the imposition of two probation conditions.  The
  trial court's order  placing defendant on probation requires him, inter
  alia, to submit to alcosensor testing and  urinalysis when required by his
  probation officer or the officer's authorized representative.  The  State
  has explicitly declined to oppose their deletion, and we therefore modify
  the judgment to  delete these two conditions of defendant's probation.

       All of the foregoing issues were placed before the Court via the brief
  filed on defendant's  behalf by his appellate counsel.  Defendant also
  appears pro se to raise additional issues, to 

 

  which we now turn.

       The first argument in defendant's brief is that the initial judge
  erred in denying a motion to  dismiss for lack of a prima facie case.  We
  must affirm if, viewing the record in the light most  favorable to the
  State and excluding modifying evidence, we can determine that the State 
  produced evidence fairly and reasonably tending to show the defendant
  guilty beyond a  reasonable doubt. See State v. Dixon, ___ Vt. ___, ___,
  725 A.2d 920, 922 (1999).  As  defendant's main brief emphasizes, the only
  real dispute was whether defendant had the mental  state required for the
  crime.  We conclude that the State made the requisite prima facie showing 
  as to defendant's mental state, which "may be inferred from the facts and
  circumstances"  surrounding the act in question.  State v. Hatcher, 167 Vt.
  338, 344, 706 A.2d 429, 433 (1997).  The evidence does not become
  inadequate because the State had been willing to reduce the  charges as
  part of a plea bargain which defendant rejected.

       As part of this argument, defendant challenges the trial judge's
  decision to allow the  prosecution to require that defendant demonstrate to
  the jury how and where he touched himself.  The latter issue is not before
  us for the simple reason that the prosecutor withdrew her request,  and no
  demonstration occurred.  Any error is harmless.  See V.R.Cr.P. 52(a).

       Second, defendant uses his pro se brief to argue for the first time
  that § 2601 is too vague  to withstand constitutional scrutiny.  When a
  defendant raises an issue for the first time on  appeal, we review the
  trial court's determination for plain error and, thus, alter the result
  only if  the trial court erred in a manner "so grave and serious as to
  strike at the very heart of  defendant's constitutional rights or adversely
  affect the fair administration of justice."  State v.  Bradley, 164 Vt.
  346, 348, 670 A.2d 811, 813 (1995).  We discern no such error, being 
  confident that a "person of ordinary intelligence" would understand that
  the conduct committed  by defendant was prohibited.  In re 1650 Cases of
  Seized Liquor, ___ Vt. ___, ___, 721 A.2d 100, 107 (1998); see also State
  v.Dann, 167 Vt. 119, 128, 702 A.2d 105, 111 (1997) (absent  First Amendment
  considerations, defendant may not challenge statute on vagueness grounds 
  based on its possible application to others). Much of defendant's argument
  is based on his  assertion that his conduct was neither intentional nor
  open, points on which the jury found  against him.

       Next defendant interposes a series of objections to the abortive
  effort to sentence him  under the plea agreement that was ultimately
  rescinded on September 29, 1997.  Upon its  rescission, and absent
  circumstances that are not present here, the plea agreement became a 
  nullity, and the State was free to prosecute defendant as originally
  charged.  See United States  ex. rel. Williams v. McMann, 436 F.2d 103, 107
  (2d Cir. 1970); 2 W. LaFave & J. Israel,  Criminal Procedure § 20.5(e), at
  816 (1985).  Here, the accepted plea withdrawal necessarily  required the
  court to strike the judgment of conviction, an action defendant explicitly
  sought.

       Defendant argues that consideration of the plea withdrawal at the
  September hearing was  improper because it was noticed to consider only a
  sentencing issue.  Defendant, however, filed  the motion for a new plea
  proceeding, and he and his counsel insisted on going forward at the 
  September hearing.  He cannot now complain because the court responded as
  he requested.

       Defendant argues that he never sought to withdraw his plea.  We have
  reviewed the  transcript of the September 29, 1997 hearing, along with the
  written motion, and conclude that  defendant sought to have the earlier
  plea and conviction stricken and was unwilling to plead  guilty again. 
  Regardless of how defendant now characterizes those statements and acts,
  the  record indicates that the trial judge properly interpreted them as a
  motion to withdraw the plea of  guilty and advised defendant fully of the
  consequences of the plea withdrawal, including that the  original charges
  would be reinstated.
  
 

       Related to the plea withdrawal, defendant challenges the ultimate
  conviction as double  jeopardy because defendant stood convicted when the
  court accepted his plea to the misdemeanor  and entered judgment on August
  18, 1997.  Defendant's right not to be placed in second  jeopardy is
  personal and can be waived voluntarily.  See State v. Duval, 156 Vt. 122,
  130, 589 A.2d 321, 326 (1991) (Dooley, J., dissenting) (citing United
  States v. Anderson, 514 F.2d 583,  586 (7th Cir. 1975)).  Defendant's
  motion to strike the plea and conviction operated as a waiver  here.

       Defendant also contends that his constitutional right to a speedy
  trial was violated in light  of the nearly twenty months that elapsed
  between his arraignment and his sentencing.  The  relevant factors in
  assessing such a contention are "the length of the delay, the reason for
  the  delay, defendant's efforts at obtaining a speedy trial, and the
  prejudice to the defendant."  State  v. Turgeon, 165 Vt. 28, 35, 676 A.2d 339, 393 (1996) (citation omitted).  "Of these factors,  prejudice is the
  most important.  Where there is no prejudice to the defense at trial, a
  speedy-trial  claim cannot prevail."  Id.  Although we note that defendant
  is himself partially responsible for  prolonging the pendency of the
  proceedings, we resolve the issue by simply pointing out that  defendant
  has identified no basis for a determination that his defense was prejudiced
  by any  delay.

       Finally, defendant urges us to vacate his sentence because of improper
  judicial bias and  because the sentence as imposed amounts to
  unconstitutionally cruel or unusual punishment.  We  find no support for
  the latter argument; the sentence was within the allowed range.  The claim
  of  bias is based on adverse rulings, without any showing of improper
  motivation.  See State v.  Streich, 163 Vt. 331, 354, 658 A.2d 38, 53
  (1995) (adverse rulings in and of themselves do not  demonstrate judge's
  bias).  Accordingly, it does not show reversible error.
	
       Judgment modified to delete conditions of probation requiring
  defendant to submit to  alcosensor and urinalysis testing; the judgment, as
  modified, is affirmed.




                                 BY THE COURT:



	                         _______________________________________
	                         Jeffrey L. Amestoy, Chief Justice

	                         _______________________________________
                                 John A. Dooley, Associate Justice

	                         _______________________________________
	                         James L. Morse, Associate Justice

	                         _______________________________________
	                         Denise R. Johnson, Associate Justice

	                         _______________________________________
	                         Ernest W. Gibson III, Associate Justice (Ret.)
	                         Specially Assigned


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                                  Footnotes

FN1.  Although this sixth attorney sought leave to withdraw at this abortive
  sentencing hearing, he ended up representing  defendant at the ensuing
  trial.  A seventh attorney was appointed to represent defendant on appeal
  but sought to withdraw after  filing defendant's appellate brief,
  thereafter supplemented by defendant's pro se filing.  At oral argument,
  defense counsel  simply introduced defendant, who argued pro se.