State v. Griswold

State v. Griswold (2000-154); 172 Vt. 443; 782 A.2d 1144

[Filed 24-Aug-2001]


       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. 2000-154


State of Vermont	                         Supreme Court

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

Daniel Martin Griswold	                         May Term, 2001 



M. Patricia Zimmerman, J.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney 
  General, Montpelier, for Plainiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.


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


       MORSE, J.   Following a jury trial, defendant Daniel Griswold was 
  convicted of aggravated sexual assault in violation of 13 V.S.A.
  §3253(a)(7).  On  appeal, defendant claims: (1) the trial court erred by
  excluding evidence of the  victim's past domestic disputes and limiting
  expert testimony, thereby depriving  defendant of his constitutional right
  to a fair trial, and (2) the evidence presented by  the State was
  insufficient to find him guilty of aggravated sexual assault.  We  affirm.

       In the dark early morning hours of July 26, 1998, the victim was
  sexually  assaulted on a riverbank off a trail in Rutland.  At trial, she
  testified that she had  been out the night before and early that morning
  with friends at different bars in  Rutland.  Her friends then left her in
  an intoxicated state 

 

  at "Jilly's."  The victim did not remember leaving the bar, but when she 
  regained consciousness, she was restrained, face down on the ground with
  someone  penetrating her rectum.  While she screamed for him to stop, the
  perpetrator pushed  her face into the dirt and shoved rocks, grass and
  gravel into her mouth, which made  breathing difficult.  She was not able
  to look at him.  After he left, she ran home,  tearing off her ripped
  underwear on the way.  The victim was taken to the hospital  and treated
  for a number of injuries including facial swelling and abrasions, a bruise 
  from blunt force impact over her eye, contusions, bruises and abrasions on
  her back,  a bruise on her right hip and abrasions to her abdomen.

       When the police investigated the scene of the crime, they located the
  victim's  underwear and found a set of keys.  The keys were linked to
  defendant, whose  duplicate key was already in police custody for an
  unrelated matter.  The police  went to defendant's home, and he identified
  the key as his own.  He said that he had  talked with the victim and kissed
  her outside Jilly's the morning of the assault, but  denied any further
  interaction with her.

       Defendant later submitted to blood sampling for purposes of DNA
  testing.   He then retracted his earlier denial of sexual relations and
  stated that he had  consensual vaginal intercourse with the victim.  An
  examination of the victim  identified the presence of sperm in her anus. 
  No sperm was found in her vagina.   DNA testing was performed on samples
  taken from five different men under  investigation, including the victim's
  boyfriend.  Defendant was the only one who  could not be eliminated as the
  source of sperm.

       Defendant was charged with one count of aggravated sexual assault
  under 13  V.S.A. § 3253(a)(7).  At the close of the State's case, the
  defense moved for  judgment of acquittal which was denied.  At the end of
  the six-day trial, the jury  found defendant guilty.  He filed two
  post-trial

 

  motions for judgment of acquittal and for a new trial, which were denied.  
  The court sentenced him to forty years to life imprisonment.  This appeal
  followed.

                                     I.

       As part of his defense, defendant sought to introduce evidence that
  the victim  and her boyfriend had a history of violence, and to argue that
  her injuries were  therefore attributable to a third party, her boyfriend,
  rather than defendant.  The trial  court excluded the evidence.

       While it is true, as defendant points out, that when "motive and
  opportunity  have been shown and . . . there is also some evidence to
  directly connect [a] third  person to the crime charged," evidence
  implicating a third party should be admitted.  State v. Grega, 168 Vt. 363,
  375, 721 A.2d 445, 454 (1998) (internal quotation  marks and citations
  omitted).  The requirement that a defendant establish motive,  opportunity
  and a direct connection prior to admission of third-party evidence is a 
  threshold relevancy requirement.  See id.  Defendant points to admissions
  by the  victim's boyfriend that, after leaving a bar in the area the same
  night of the assault,  he had walked the path by the riverbank where the
  assault occurred.  While this may  establish opportunity, it does not
  necessarily establish a direct connection between  the boyfriend and the
  assault.  See State v. Fenney, 448 N.W.2d 54, 62 (Minn.  1989) (holding
  that third party's mere presence in same trailer park where murder 
  occurred on same evening did not provide the necessary foundation to
  establish the  third party's connection to the crime).  There was no other
  evidence linking him to  the crime. 

       Even assuming, however, that there was a sufficient connection to
  establish  the relevance of defendant's third-party evidence, that evidence
  must be otherwise  admissible.  See State v. Gilman, 158 Vt. 210, 214, 608 A.2d 660, 663 (1992)  (noting a defendant is entitled to call witnesses and
  present evidence on his behalf,  but it must be otherwise admissible). 
  Vermont Rule of Evidence 

 

  404(b) states that "evidence of other crimes, wrongs, or acts is not
  admissible  to prove the character of a person in order to show that he
  acted in conformity  therewith."  Therefore, the prior domestic incidents
  were inadmissible to show that  the boyfriend "acted in conformity
  therewith," i.e., that he inflicted the physical  injuries on the victim on
  the night of the sexual assault. (FN1)  Furthermore, as the  trial court
  noted, the fact that the victim also happened to be a victim of domestic 
  violence was not a character trait forming an essential element of either
  of  defendant's two asserted defenses - consent and mistaken identity - and
  thus the  incidents of domestic abuse were not admissible under V.R.E.
  405(b).  Therefore,  we discern no abuse of discretion on the part of the
  trial court in excluding evidence  of incidents of the victim and her
  boyfriend's domestic violence.

       The defense also sought to introduce expert testimony that the
  victim's  physical condition was not caused by a physical assault but was
  an allergic reaction - a dermatitis - to purple nightshade found in the
  vicinity of the assault.  The V.R.E.  104 hearing revealed that the expert,
  who possesses a master's degree in forest  ecology, had no specialized
  knowledge, training, or work experience regarding the  effects of
  absorption of purple nightshade through the skin.  By the time of trial, he 
  had consulted some professional texts and studies that he had obtained from
  the  library.  He testified, however, that most of the studies involved
  irritation from  ingestion and not contact.  The expert had never seen
  contact dermatitis from purple  nightshade.  The court permitted the expert
  to testify as 

 

  a botanist regarding the presence of purple nightshade in the area where
  the  sexual assault was alleged to have occurred, and that the plant is
  toxic or poisonous  if ingested.  The court precluded him from testifying,
  however, as to the physical  symptomology of purple nightshade, including
  testimony that contact with purple  nightshade causes chills, nausea,
  vomiting or inflamed mucous membranes of the  lips and mouth.  Defendant
  noted his objection to the limitation of the expert's  testimony. 

       Defendant argues that the trial court, in limiting the testimony, was
  making a  determination as to the witness's credibility, which is a jury
  question.  We disagree.  In considering the witness's qualifications, the
  trial court was not judging his  veracity, but rather was considering his
  competency as an expert witness.  The  competency of an expert witness is a
  threshold question to be determined by the  trial court and is within its
  sound discretion.  State v. Bubar, 146 Vt. 398, 402, 505  A.2d. 1197, 1200
  (1985).   This determination is made under  V.R.E. 702 which  provides that
  if "scientific, technical, or other specialized knowledge will assist the 
  trier of fact to understand the evidence or to determine a fact in issue, a
  witness  qualified as an expert by knowledge, skill, expertise, training,
  or education, may  testify thereto in the form of an opinion or otherwise." 

       Here, the trial court correctly noted that absent from the expert's
  knowledge,  experience, and training was knowledge as to the effect of
  contact dermatitis from  purple nightshade and that the studies that he was
  relying upon related to ingestion  and not contact.  Thus, we discern no
  abuse of discretion. See State v. Perry, 151  Vt. 637, 643, 563 A.2d 1007,
  1012 (1989) (rulings which lie within the discretion of  the trial court
  will not be set aside on appeal, absent a showing of abuse of  discretion).

       Defendant also challenges the exclusion of photographs of the victim's 
  physical condition 

 

  after a prior physical assault in February which he sought to contrast with
  her  condition after the July sexual assault in this case. The trial court
  excluded these  photographs because their "probative value [was] outweighed
  by the danger of  unfair prejudice, confusion of the issues, or misleading
  the jury . . . ."  V.R.E. 403.   As the State has correctly observed, the
  photographs had little probative value.   Defendant sought to introduce
  this evidence to demonstrate that the victim's  physical condition was not
  the result of the sexual assault, but an allergic reaction to  vegetation
  that was located at the scene of the assault.  In the absence of detailed 
  medical testimony regarding the specific nature of the February assault
  injuries,  which the defense did not offer, a comparison between the two
  incidents had little  probative value.  Furthermore, given that the
  photographs were inadmissible as  evidence of the victim's past domestic
  disputes under V.R.E. 404, the presentation  of  photographs of the
  victim's condition after the February assault was likely only  to confuse
  the jury regarding the issues before it.  See State v. Gilman, 158 Vt. 210, 
  214-215, 608 A.2d 660, 663 (1992) (evidence properly excluded under Rule
  403  where it would confuse or mislead the jury).  Thus, the court did not
  abuse its  discretion by excluding the photograph. 

                                     II.

       Defendant next asserts that the evidence was insufficient to support
  his  conviction and that his V.R.Cr.P. 29 motion for judgment of acquittal
  was wrongly  denied.  In reviewing denial of a motion for acquittal, we
  view the evidence in the  light most favorable to the judgment and,
  excluding any modifying evidence,  determine whether that evidence
  sufficiently and fairly supports a finding of guilt  beyond a reasonable
  doubt.  Grega, 168 Vt. at 380, 721 A.2d  at 457.  

       Defendant was convicted of violating 13 V.S.A. § 3253(a)(7), which
  provides  that a person commits aggravated sexual assault if the actor
  applies deadly force to  the victim in the course of a 

 

  sexual assault.  Title 13, section 3251(7) defines deadly force as
  "physical  force which a person uses with the intent of causing, or which
  the person knows or  should have known would create a substantial risk of
  causing death or serious  bodily injury."  Defendant argued in his motion
  for judgment of acquittal that there  was no evidence in the record
  supporting a finding that deadly force was used on  the victim.  The trial
  court upheld defendant's conviction under the aggravated  sexual assault
  statute, reasoning that choking creates a substantial risk of causing 
  death or serious bodily injury.  State v. Sorrell, 152 Vt. 543, 547, 568
  A.2d. 376,  378 (1989).

       Defendant argues on appeal that he did not choke the victim because
  there  was no evidence that he ever put anything around the victim's neck. 
  In Spearman v.  State, the assailant was convicted of aggravated sexual
  assault because he  pummeled the victim while sexually assaulting her,
  which resulted in asphyxiation.   694 S.W.2d 216, 217-18 (Tex. Ct. App.
  1985).  On appeal, the Texas court held that  it was reasonable for a jury
  to find that conduct that results in asphyxiation creates a  substantial
  risk of causing serious bodily injury or death.  Id. at 218.  Similarly,
  the  evidence here shows that the victim could not breathe because
  defendant was  shoving rocks, dirt, and gravel into her mouth.  Therefore,
  the trial court did not err  in finding that the evidence sufficiently and
  fairly supported the jury's  determination that defendant's conduct
  constituted deadly force.

       Defendant also argues that he did not have the intent required for
  conviction  under 13 V.S.A. §3253(a)(7) because he did not intend to cause
  death or serious  bodily to the victim when he shoved dirt, rocks and
  gravel into the victim's mouth,  nor should he have known that he was
  creating a risk of such.  It was reasonable,  however, for a jury to find
  that the defendant should have known that his actions  would create a
  substantial risk of death or serious bodily injury, which is all that is 
  required under the definition of deadly force. 13 V.S.A. §3251(7).  He
  should have  known that the same 

 

  matter that was blocking the victim's mouth and preventing her from 
  screaming could very likely prevent her from breathing.  Viewing the
  evidence in  the light most favorable to the judgment, we conclude that it
  was sufficient to  support a finding of guilt beyond a reasonable doubt. 
  The trial court did not err in  denying defendant's motion for judgment of
  acquittal. 

       Affirmed.
 



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  Defendant argues in his reply brief that the history of domestic
  violence  should have been admitted under State v. Sanders, 168 Vt. 60, 716 A.2d 11 (1998)  to establish the context of his third-party theory that the
  boyfriend caused the  victim's injuries.  This was not the proffer made at
  the trial level, however.  Rather,  as defendant argued to the trial court,
  he sought to introduce evidence that there are  "people out there who in
  fact are prone to getting into . . . physical altercation[s]  with [the
  victim].  And that may well have happened during that bit period of time 
  when we just don't know what happened." (Referring to the time period
  between  the victim being at Jilly's and her coming to consciousness during
  the sexual  assault.)