State v. Synnott

State v. Synnott (2003-113); 178 Vt. 66; 872 A.2d 874

2005 VT 19

[Filed 04-Feb-2005]


       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.


                                 2005 VT 19

                                No. 2003-113


  State of Vermont	                         Supreme Court

                                                 On Appeal from
       v.	                                 District Court of Vermont, 
                                                 Unit No. 3, Washington Circuit

  Stephen Synnott	                         November Term, 2004


  Edward J. Cashman, J.

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

  Bradley S. Stetler of Stetler, Allen & Kampmann, Burlington, for
    Defendant-Appellant.


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

        
       ¶  1.  ALLEN, C.J. (Ret.), Specially Assigned.   Defendant appeals a
  jury verdict finding him guilty of lewd and lascivious behavior, second
  degree unlawful restraint, and attempted sexual assault.  He argues that
  (1) the trial court abused its discretion by admitting evidence of him
  touching his genitals and acting strangely in a holding cell at the police
  station following the alleged assault; (2) the unlawful restraint
  conviction cannot stand independent of the other charges; (3) the evidence
  was insufficient to support the attempted sexual assault conviction; (4)
  the trial court's jury instruction on the attempted sexual assault
  conviction failed to adequately explain the element of intent; and (5) the
  trial court gave the jury an erroneous and prejudicial supplemental
  instruction on the attempted sexual assault charge.  We find no error
  requiring reversal and therefore affirm the convictions.

       ¶  2.  On the evening of December 28, 2001, the complainant and her
  friend, who was spending the night with complainant, were having drinks at
  a bar when defendant arrived and sat near the two women.  After the three
  spent several hours at the bar conversing, the complainant decided that it
  was time to take her drunk friend home.  Defendant suggested that they go
  to his nearby hotel for coffee.  They agreed and walked a couple of blocks
  to the hotel.  After spending about an hour in defendant's hotel room,
  where the complainant allowed defendant to give her a back rub, they walked
  to the complainant's apartment, less than a mile away.  When they arrived
  at the apartment, the complainant's friend fell asleep immediately.

       ¶  3.  Over the next four hours, defendant behaved in a manner that
  increasingly alarmed the complainant.  Defendant became upset after being
  unable to download a particular song from the Internet.  When the
  complainant suggested that it might be time to call it a night, defendant
  put his hands on her shoulder to prevent her from standing up and pushed
  her back into the chair she was sitting in.  Refusing to allow the
  complainant to log off the Internet, defendant swung his legs over the arms
  of her chair, sat down on her lap facing her, and began kissing her and
  squeezing her breasts.  Every time the complainant attempted to get up to
  check on her friend or to change the song on the CD player, defendant would
  push her back into the chair.  At times, he became agitated, complaining
  about the music or the complainant not drinking.  The complainant attempted
  to placate him by agreeing with him and pretending to drink.
   
       ¶  4.  Finally, defendant allowed the complainant to go to the
  bathroom, but he insisted that she come right back, and he pushed the
  bathroom door open while she was inside.  When the complainant returned
  from the bathroom, she asked defendant to leave.  Defendant became
  agitated, repeatedly asking the complainant if he had not been good to her. 
  At one point, he stood over the complainant's friend, whom he and the
  complainant had moved from an air mattress in the living room to the
  bedroom, and made chopping movements with his hands.

       ¶  5.  Defendant then pulled the complainant back into the living
  room, sat down on a chair, and tried to pull her onto his lap.  When she
  resisted, he got angry.  She reached for his shoulder in an attempt to calm
  him, but he screamed at her not to touch him.  When she told him that she
  was tired, he pushed her onto the air mattress, pinned her with his body,
  and began yelling at her.  He then began kissing her, fondling her, and
  removing her clothes.  He ignored her pleas that he stop, and every time
  she tried to push him away, he screamed at her not to touch him.  He
  removed his clothes and began to grind his crotch against hers.  He urged
  her to take off her jeans and tried to do so himself when she refused.  At
  one point, he whispered into her ear that he was bipolar, which made her
  more frightened of him.  She eventually got him to get off of her by
  begging him for a glass of water.  When he left the room, she ran to the
  computer and logged off the Internet.
   
       ¶  6.  When defendant returned, he was angry that the complainant
  had put her turtleneck back on.  He kept asking her if he had not been good
  to her.  By this time, the complainant was crying and begging defendant,
  telling him that it was her fault and not his.  At one point, defendant
  grabbed her hand and pulled her towards the kitchen, again asking her if he
  had not been good to her.  Then he put his hand around her throat and began
  to squeeze.  He let her go after she acknowledged that he had been good to
  her.  When he opened the refrigerator door, the complainant grabbed the
  phone, ran into the bedroom, and called the police.

       ¶  7.  Minutes later, the police arrived at the apartment building and
  saw defendant walking along the road outside, wearing a jacket and jeans,
  but no shirt.  They detained him and spoke to the complainant, who was
  hysterical.  Defendant was taken into protective custody and placed in a
  holding cell monitored by a security camera.  While in the holding cell,
  defendant pulled down his pants, urinated, and then sat on the toilet.  At
  one point, he got up from the toilet, walked around with his pants at his
  ankles, touched his genitals, and then raised his arms toward the ceiling. 
  When the officer told him to put his pants back on, he did so.

       ¶  8.  Defendant was charged with (1) lewd and lascivious behavior, in
  violation of 13 V.S.A. § 2601, for fondling the complainant; (2) second
  degree unlawful restraint, in violation of 13 V.S.A. § 2406(a)(3), for
  preventing the complainant from getting out of her chair during a
  one-and-one-half-hour period; and (3) attempted sexual assault, in
  violation of 13 V.S.A. § 3252(a)(1) and § 9, for engaging in acts toward
  the commission of a sexual assault before being prevented from doing so. 
  The district court denied defendant's pretrial motion to prevent the
  prosecution from admitting evidence concerning his behavior in the holding
  cell on the night of the alleged assault.  Following a three-day trial, the
  jury convicted defendant on all three charges.  The district court
  sentenced defendant to serve four-to-eight years for the first two
  offenses, with a suspended five-to-twenty-year sentence for the third
  offense.

                                     I.
   
       ¶  9.  Defendant first argues that the introduction of a videotape
  showing him in a holding cell nude, urinating, defecating, and touching his
  genitals-together with police testimony concerning that behavior-was so
  prejudicial as to warrant a new trial.  Shortly before trial, defendant
  filed a motion in limine asking the trial court to exclude testimony or
  other evidence of his behavior after the police took him into protective
  custody on the night of the alleged assault.  Defendant argued that
  evidence concerning his behavior following his arrest would serve only to
  prejudice his case and inflame the jury.  Defendant also argued that the
  videotape taken in the holding cell did not support the officers' testimony
  concerning his behavior.  At the hearing on the motion, the State contended
  that evidence of defendant's erratic behavior following his arrest was
  relevant to corroborate the complainant's description of his bizarre
  behavior during the alleged assault and to counter his contention that she
  never clearly rejected his sexual advances.  In response, defense counsel
  stated only that the videotape did not support the testimony of police
  officers that defendant was masturbating or engaging in lewd behavior in
  the holding cell.  The trial court ruled that defendant's conduct after his
  arrest was relevant on the issue of consent, particularly given that the
  case was a credibility contest between defendant and the complainant.  As
  for the potential prejudice to defendant, the court noted that the evidence
  might actually support defendant's diminished capacity defense.
   
       ¶  10.  At trial, one of the police officers who monitored defendant
  in the holding cell testified that she observed defendant urinate, sit down
  on the toilet, and then get up with his pants at his ankles, face the
  camera, and pull on his penis while screaming.  Following this testimony,
  the jury viewed a videotape of defendant in the holding cell.  The
  videotape is a soundless series of still images from several different
  cameras.  The views of defendant in the holding cell last one-half second
  or less before moving on to views from other cameras showing scenes inside
  and outside the police station.  The brevity of the still frames and the
  rapid movement from one frame to another make it difficult to view the
  videotape and to see what is happening.  Generally, the videotape shows
  defendant, at various times, lying on a cot, urinating, and sitting on the
  toilet.  At one point, defendant gets up from the toilet with his pants at
  his ankles, walks to the cell door, turns to face the camera, and then
  reaches toward the ceiling with both arms before placing his hands on his
  crotch.  There are seven or eight still frames from the time he gets off
  the toilet until he pulls his pants back up, and only one of them shows
  defendant with his hands on his crotch.

       ¶  11.  After the videotape was shown to the jury, defendant asked the
  trial court to instruct the jurors that the videotape "relates only to the
  defense of intoxication and should not be used as evidence that he was
  engaged in some kind of lewd and lascivious act because there's nothing
  charged as far as what happened in the jail cell."  The State responded
  that the videotape was being offered to corroborate the victim's account of
  defendant's bizarre behavior.  Although the transcript of the court's
  response is not entirely clear, the bases for the court's refusal to give
  the requested instruction appear to be that the videotape is relevant with
  respect to the issue of consent and does not show defendant engaging in
  lewd and lascivious behavior.
   
       ¶  12.  On appeal, defendant argues that the trial court abused its
  discretion by admitting both the testimony and videotape concerning his
  behavior in the holding cell, but he focuses primarily on the videotape. 
  He first asserts that the court failed to exercise its discretion by not
  viewing the videotape and weighing its probative value against any
  potential prejudicial impact before denying his motion in limine and
  showing the videotape to the jury.  He also contends that the videotape has
  little probative value but, on the other hand, is highly prejudicial
  because it depicts him engaging in private bodily functions and acts of a
  sexual nature.  According to defendant, the trial court abused its
  discretion by failing to grasp that evidence of him engaging in sexually
  explicit conduct would be highly prejudicial in a case charging him with
  sexual offenses.

       ¶  13.  We agree with defendant that the trial court abused its
  discretion by not previewing the videotape before  ruling on his motion in
  limine and showing it to the jury.  Without previewing the videotape, it
  would be difficult, if not impossible, for the trial court to weigh its
  potential prejudicial impact on the jury.  Nevertheless, we find no
  reversible error.  The court eventually viewed the videotape along with the
  jury, and found that it was ambiguous and unlikely to have significant
  prejudicial impact on the jury.  The court stated that the videotape did
  not reveal the type of lewd actions that it had expected to see based on
  the arguments presented at the motions hearing.  Apparently, the court felt
  that the brief still images of defendant in the holding cell would, if
  anything, diminish the effect of the police officer's testimony concerning
  defendant's behavior in the cell and possibly provide support for
  defendant's diminished capacity defense.  Thus, unlike the situation in
  State v. Shippee, 2003 VT 106, ¶¶ 14-15, 176 Vt. ___, 839 A.2d 566 (mem.)
  (remanding case because there was "no sign" that trial court ever weighed
  evidence under V.R.E. 403), the court in this case did eventually weigh the
  potential prejudicial impact of the tape against its probative value.
   
       ¶  14.  Furthermore, although this case presents a close question, we
  conclude that the trial court did not abuse its discretion by admitting the
  testimony and videotape concerning defendant's behavior in the holding
  cell.  See id. at ¶ 13 ("The discretion of the trial court is broad when
  reaching a decision based on the balancing test under Rule 403.").  Without
  question, introducing evidence of defendant's behavior in the holding cell
  had some potential to prejudice a jury deciding whether he was guilty of
  sexual offenses on the same night.  But there are several factors
  countering the potential prejudice.  It was undisputed that defendant was
  highly intoxicated when he was taken to the holding cell.  Indeed,
  defendant argued that evidence of his behavior in the cell negated the
  element of intent in the attempted sexual assault charge leveled against
  him.  Further, as the trial court noted, the videotape does not show any
  explicit lewd acts committed by defendant.  There is only one frame that
  shows defendants' hands touching his crotch, and he does not appear to be
  making any lewd gesture or movement in that image.

       ¶  15.  While defendant does not appear to engage in any lewd behavior
  in the cell, his behavior does seem bizarre, particularly the gestures he
  makes with his arms raised over his head.  As defendant acknowledges, the
  critical issue at trial was the complainant's credibility, specifically as
  to whether she made it clear to defendant that his sexual advances were
  unwelcome.  The complainant testified that defendant's mood swings and
  bizarre behavior frightened her and convinced her that the best way to ward
  off his sexual advances was to pacify and distract him rather than confront
  or antagonize him.  Defendant sought to convince the jury that the
  complainant was receptive to his advances, at least initially, and, in any
  event, did not ever clearly and unequivocally reject those advances.  In
  fact, defendant argued in his motion for a new trial that the complainant's
  trial testimony demonstrated that she did not resist his advances and
  failed to communicate clearly that she was not consenting to those
  advances.
   
       ¶  16.  Therefore, evidence of defendant's mood swings and bizarre
  behavior shortly after the alleged assault was highly relevant and
  probative as to whether the complainant had reason to fear defendant and to
  be cautious in resisting his advances.  Given these circumstances, the
  trial court acted within its broad discretion in admitting the evidence of
  defendant's behavior in the holding cell shortly after the alleged assault. 
  Cf. United States v. Boyd, 610 F.2d 521, 526-27 (8th Cir. 1979) (holding
  that trial court did not abuse its discretion under Rule 403 by admitting
  photographs of co-conspirators and other women naked); State v. Manning,
  598 N.E.2d 25, 29 (Ohio Ct. App. 1991) (holding that trial court did not
  abuse its discretion under Rule 403 by admitting unflattering photographs
  that defendant's husband had taken of her before she killed him).

       ¶  17.  Finally, the trial court acted within its discretion in
  refusing to give the limiting instruction that defendant requested.  As
  noted, defendant asked the court to instruct the jury to consider the
  videotape only with respect to his diminished capacity defense and not as
  evidence that he engaged in lewd behavior.  Not surprisingly, the court
  refused to instruct the jury as such because it had admitted the videotape
  as evidence related to the issue of whether the complainant had consented
  to defendant's sexual advances.  We have already ruled that the trial court
  did not abuse its discretion in admitting the videotape.  It would
  certainly have been proper for the court to instruct the jury that it
  should not consider any lewd acts he may have committed in the holding cell
  after his detention as evidence that he was guilty of the charged offenses,
  but that was not the limiting instruction that defendant requested.

                                     II.

       ¶  18.  Next, defendant argues that the unlawful restraint conviction
  must be reversed because it is based solely on conduct incidental to the
  underlying charge of lewd and lascivious behavior.   Defendant was charged
  with knowingly restraining another person.  See 13 V.S.A. § 2406(a)(3).  In
  relevant part, the statute defines the word restrain as restricting
  "substantially the movement of another person without the person's consent
  or other lawful authority by . . . confining the restrained person for a
  substantial period."  Id. § 2404(3)(C).
   
       ¶  19.  The test for determining whether a confinement may be charged
  as a separate offense is "whether the confinement, movement, or detention
  was merely incidental to the accompanying felony or whether it was
  significant enough, in and of itself, to warrant independent prosecution." 
  State v. Goodhue, 2003 VT 85, ¶ 16, 175 Vt. 457, 833 A.2d 861.  Among the
  factors we consider in applying this test are

    whether evidence of the seizure, detention, or movement was or was
    not inherent in the nature of the underlying crimes; whether the
    crime was facilitated by the confinement; whether the movement or
    confinement prevented the victim from summoning assistance;
    whether the movement or detention lessened the defendant's risk of
    detention; and whether the movement or detention created a
    significant danger or increased the victim's risk of harm.

  Id. at ¶ 13.
   
       ¶  20.  In this case, defendant confined the complainant for
  approximately one and one-half hours while alternately fondling and
  intimidating her.  The duration of confinement was well beyond the time
  required to perpetrate a lewd and lascivious act.  Cf. State v. Maunsell,
  170 Vt. 543, 543, 743 A.2d 580, 581 (1999) (mem.) (complaining witness was
  seated in library when she observed defendant eight feet away massaging his
  genitals); State v. Ovitt, 148 Vt. 398, 401, 535 A.2d 1272, 1274 (1987)
  (complaining witness observed defendant masturbating while standing by barn
  located across street); State v. Purvis, 146 Vt. 441, 442, 505 A.2d 1205,
  1206 (1985) (complaining witnesses were walking home from school when
  defendant exposed himself from window of his house).  Further, the lengthy
  confinement increased the complainant's vulnerability and subjected her to
  an increased risk of harm.  Moreover, the nature of the restraint
  effectively isolated the complainant by preventing her from summoning
  assistance and by lessening defendant's risk of detection.  Therefore, we
  conclude that the confinement in this case was criminally significant in
  and of itself and not merely incidental to defendant's lewd and lascivious
  conduct.  Cf. State v. Carrasquillo, 173 Vt. 557, 561, 795 A.2d 1141, 1146
  (2002) (mem.) (holding hostage at knife point for several minutes during
  escape attempt was sufficient to support separate kidnapping conviction);
  State v. Lang, 164 Vt. 598, 599, 664 A.2d 267, 268 (1995) (mem.) (accosting
  elderly woman and holding her hostage in her bedroom for fifteen minutes
  late at night during robbery, and then disabling telephone so that she had
  to wait until morning to contact someone, was sufficient evidence to
  support separate kidnapping conviction).

                                  III.

       ¶  21.  Defendant next argues that the evidence was insufficient to
  support the attempted sexual assault conviction.  According to defendant,
  the evidence demonstrates that he stopped his sexual advances when the
  complainant finally got the message across to him that she did not want to
  have sex with him.  He contends that he was not interrupted or prevented
  from completing a sexual act, see 13 V.S.A. § 9(a) (establishing punishment
  for "person who attempts to commit an offense and does an act toward the
  commission thereof, but by reason of being interrupted or prevented fails
  in the execution of the same"), but rather stopped on his own volition when
  he understood that she was not consenting to his sexual advances.
   
       ¶  22.  We find this argument unavailing.  "An attempt requires
  intent to commit a particular crime and an overt act designed to carry out
  that intent."  State v. McGee, 163 Vt. 162, 165, 655 A.2d 729, 732 (1995). 
  Hence, "[t]he act must advance the actor's conduct beyond mere intent, and
  reach far enough toward accomplishing 'the desired result to amount to the
  commencement of the consummation.' "  Id. (quoting State v. Boutin, 133 Vt.
  531, 533, 346 A.2d 531, 532 (1975)).  Further, once the actor has committed
  the requisite overt act, the offense is complete, and abandonment of the
  enterprise does not negate guilt.  See Wiley v. State, 207 A.2d 478, 480
  (Md. 1965) ("[A] voluntary abandonment of an attempt which had proceeded
  beyond mere preparation into an overt act or acts in furtherance of the
  commission of the attempt does not expiate the guilt of, or forbid
  punishment for, the crime already committed."); State v. Miller, 477 S.E.2d 915, 922 (N.C. 1996) ("[O]nce a defendant engages in an overt act, the
  offense is complete, and it is too late for the defendant to change his
  mind."); see also R. Perkins, Criminal Law § 3, at 511 (1957) ("The
  accepted view has been that a criminal attempt is a 'complete offense' in
  the sense that one who has carried a criminal effort to the point of
  punishability can no more wipe out his criminal guilt by an abandonment of
  his plan than a thief can obliterate a larceny by restoration of the stolen
  chattel.").
   
       ¶  23.  Here, the State presented evidence showing that defendant
  pushed the complainant onto an air mattress, fondled her, removed her
  turtleneck and bra, removed his own clothes, ground his crotch against
  hers, and tried to remove her pants before agreeing to get her some water. 
  Minutes later, when defendant went to get the water, he pulled the
  complainant along with him and squeezed her throat until she acknowledged
  that he had been good to her.  His sexual advances ended only when she ran
  into her bedroom and called the police after he opened the refrigerator
  door.  This evidence does not demonstrate abandonment and, in any case, was
  sufficient for the jury to conclude beyond a reasonable doubt that
  defendant's actions had advanced beyond mere intent to commencement of the
  consummation of a sexual assault.  See Carrasquillo, 173 Vt. at 559, 795 A.2d  at 1145 (standard of review for denial of motion for judgment of
  acquittal is "whether, taking evidence in the light most favorable to the
  state and excluding modifying evidence, the state has produced evidence
  fairly and reasonably tending to show the defendant guilty beyond a
  reasonable doubt"); cf. Goodhue, 2003 VT 85, at ¶¶ 2, 6 (evidence that
  defendant threw victim to floor, ripped off her shirt, and tried to remove
  her pants before fleeing when he heard door slam was sufficient to support
  attempted sexual assault conviction); State v. Jackson, 813 P.2d 156,
  158-59 (Wash. Ct. App. 1991) (evidence that defendant lured victim into
  bedroom and threatened to kill her if she did not lift her skirt was
  sufficient to support attempted sexual assault conviction); State v.
  Gatalski, 699 P.2d 804, 806, 811 (Wash. Ct. App. 1985) (evidence that
  defendant pushed victim onto bed, lay on top of her, and tried to force his
  hands under her clothing before he let her use the bathroom, where she
  escaped through a window, was sufficient to support attempted sexual
  assault conviction).

                                     IV.

       ¶  24.  Defendant next argues that the trial court erroneously omitted
  the element of intent when instructing the jury on the attempted sexual
  assault charge.  According to defendant, the court failed to convey the
  jury's obligation to find that he intended to engage in a sexual act with
  the complainant without her consent.  We find no error.  Whatever ambiguity
  may have been created by the trial court's original instructions, the court
  gave a supplemental instruction telling the jury that the State had to
  prove that defendant intended to have sexual intercourse with the
  complainant without her consent, and that he took steps to accomplish that
  end.  See State v. Jennings, 583 A.2d 915, 925 (Conn. 1990) (question in
  reviewing adequacy of jury instructions is whether jury could have
  reasonably been misled in light of entire instructions, including any
  supplemental instructions).

                                     V.
   
       ¶  25.  Finally, defendant argues that the trial court committed
  reversible error by giving the jury a supplemental instruction stating that
  it could find sufficient evidence of an attempted sexual assault if the
  complainant said "ouch" during the incident that formed the basis for the
  charge.  According to defendant, because there was evidence that the
  complainant said "ouch" at one point during the alleged assault, the
  court's instruction effectively directed a guilty verdict against him.  We
  decline to consider this argument because defendant has failed to produce a
  record showing that the trial court instructed the jury as he claims, even
  though the supplemental instructions concerning the attempted sexual
  assault were transcribed.  See State v. Gadreault, 171 Vt. 534, 538, 758 A.2d 781, 786 (2000) (mem.) (defendant's failure to produce transcript
  showing he preserved issue for appeal precluded review on appeal);
  Appliance Acceptance Co. v. Stevens, 121 Vt. 484, 488, 160 A.2d 888, 891
  (1960) ("To omit to incorporate into the record on appeal the transcript of
  applicable testimony and proceedings without authorization is to forfeit
  review of questions requiring reference to the transcript.").


       Affirmed.


                                       FOR THE COURT:


                                       _______________________________________
                                       Chief Justice (Ret.), Specially Assigned