State v. Alexander

State v. Alexander (2003-206); 178 Vt. 482; 871 A.2d 972

2005 VT 25

[Filed 18-Feb-2005]

                                 ENTRY ORDER

                                 2005 VT 25

                      SUPREME COURT DOCKET NO. 2003-206

                             NOVEMBER TERM, 2004

  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	District Court of Vermont,
                                       }	Unit No. 2, Addison Circuit
  Raymond H. Alexander	               }
                                       }	DOCKET NO. 198-4-99 Ancr

                                                Trial Judge: Helen M. Toor

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

       ¶  1.  Defendant appeals his conviction, after jury trial, for
  attempted kidnapping.  13 V.S.A. § 2405 (a)(1)(C).  We reversed defendant's
  conviction on the same charge in State v. Alexander, 173 Vt. 376, 385, 795 A.2d 1248, 1255 (2002) [hereinafter Alexander I] because the trial court
  failed to give an instruction on the lesser-included offense of unlawful
  restraint in the second degree.  In Alexander I, we held that the
  kidnapping statute required the State to prove both an intent to restrain
  and an intent to do some other act.  173 Vt. at 382, 795 A.2d  at 1253. 
  Here, the second element alleged was an intent to "inflict bodily injury
  upon . . . or place the restrained person . . . in fear that any person
  will be subjected to bodily injury."  13 V.S.A. § 2405(a)(1)(C).  As we
  stated in Alexander I,

    The State relied on the same facts to prove the kidnapping as to
    prove the restraint.  Although, the jury was entitled to infer
    both the intent to restrain and the intent to do serious bodily
    injury from the same facts, defendant's second intent was not a
    foregone conclusion. The resolution of the issue was the important
    difference between two crimes-unlawful restraint and kidnapping.
    Under these circumstances, it was error not to follow our general
    rule that lesser?included offenses must be charged when raised by
    the evidence.

  173 Vt. at 385, 795 A.2d  at 1255.  In addressing defendant's other claims
  on appeal, we found the record evidence sufficient for a jury to reasonably
  conclude that the kidnapping had a specific purpose other than mere
  restraint.  Id. at 386, 795 A.2d  at 1255.  But, because the jury had not
  been given the opportunity to consider the lesser-included offense and
  alternative theories of the case, we reversed, and defendant was retried on
  the same charge.  
   
       ¶  2.  On retrial, the proper instruction on the lesser-included
  offense was given and the jury convicted defendant, essentially relying on
  the same evidence adduced in the first trial that supported both the intent
  to restrain and the intent to inflict bodily injury or put the victim in
  fear of bodily injury.  In this second appeal, defendant again claims that
  the evidence was insufficient to support defendant's conviction for  the
  same reasons argued in Alexander I, where we reviewed the evidence and
  reached the opposite conclusion.  Our conclusion that the jury was entitled
  to infer the double intent from the facts of the crime remains unchanged. 
  There was no error. 

       ¶  3.  Defendant also claims that the court violated his right to
  due process of law by permitting testimony from the victim and a witness
  that the victim's first statement on reaching a place of safety was that
  "someone tried to rape" her or that the "cleaning guy just tried to rape
  me."  In Alexander I, defendant was acquitted of attempted sexual assault. 
  Defendant's objection below, however, had a different basis than that urged
  here.  Defendant objected that the probative value of the evidence was
  outweighed by its prejudice.  As a result, we review defendant's
  constitutional claim only for plain error.  State v. Ross, 152 Vt. 462,
  468, 568 A.2d 335, 339 (1989) (stating that, on appeal, unpreserved issues
  are reviewed for plain error that will be found only in rare and
  extraordinary cases where the error is an obvious one that affects
  substantial rights of the defendant).  We find no plain error.

       ¶  4.  The challenged evidence was admissible as an excited
  utterance, and was relevant as tending to show that defendant had placed
  the victim in fear of bodily injury.  Although not sufficient in and of
  itself to prove defendant's intent to inflict bodily injury, it supported
  the inference that the jury was entitled to draw from the violent nature of
  the attempted restraint and ensuing conduct.  The trial court properly
  balanced probative value to determine if it was outweighed by prejudicial
  effect.  On these facts, we cannot say that the court abused its broad
  discretion in admitting the evidence.  See State v. Shippee, 2003 VT 106,
  ¶ 13, 839 A.2d 566 (mem.) (recognizing that the court enjoys broad
  discretion in making V.R.E. 403 rulings, and thus error will not be found
  unless the trial court completely withheld its discretion or exercised it
  on grounds clearly untenable or unreasonable).  The evidence formed part of
  the fabric of the victim's story such that to withhold her reaction to the
  attack immediately after the events would have given the false impression
  that the incident had no impact on her.  The trial court's decision that
  the evidence's probative value was not substantially outweighed by its
  potential prejudicial effect was within its discretion, and as such, did
  not violate our plain error standard.

       ¶  5.  Defendant's third claim of error is also unpreserved and is,
  therefore, subject to review under our plain error standard.  That claim is
  that the trial court erred in instructing the jury that evidence of flight
  alone is not sufficient to convict.  In fact, the trial court instructed
  that flight evidence "does not raise any presumption of guilt and it has
  limited value as proof."  This was acceptable to defendant, and it is
  acceptable to us.  The instruction went further than defendant originally
  requested, in that it was stronger than saying that flight alone is
  insufficient to convict.  Instead, it seriously undercut any probative
  value that the jury might assign to evidence of defendant's flight.  There
  was no error.
   
       ¶  6.  Finally, defendant argues that his sentence is illegal
  because the maximum sentence for attempted kidnapping is thirty years, not
  thirty-five years to life, as he received.  Although defendant acknowledges
  that, under 13 V.S.A. § 9(a), certain attempt crimes, including kidnapping,
  are punishable in the same manner as the offense attempted, he contends
  that the kidnapping statute states two punishments, and thereby creates an
  ambiguity with the attempt statute as to which sentence in the kidnapping
  statute applies to attempted kidnapping.  He relies on the rule of lenity
  to construe the ambiguity in favor of the accused.  State v. Baldwin, 109
  Vt. 143, 148, 194 A. 372, 374 (1937) ("If there is an ambiguity which
  admits of two reasonable and contradictory constructions, that one which
  operates in favor of the person accused under its provisions is to be
  preferred.").

       ¶  7.  As we stated in State v. Kinney, 171 Vt. 239, 256, 762 A.2d 833, 846 (2000): "In essence, the statute creates two different crimes: the
  crime of kidnapping with a maximum punishment of life in prison, and the
  crime of kidnapping with mitigating circumstances, with a maximum
  punishment of thirty years in prison."  We disagree with defendant that the
  construction of the kidnapping statute with the attempt statute creates an
  ambiguity.  To be eligible for the lesser penalty in the kidnapping
  statute, defendant had to have released the victim in a safe place.  Such a
  claim must be raised and proved by defendant as an affirmative defense to
  the charge of kidnapping.  Id. (recognizing that "voluntary release" is an
  affirmative defense to kidnapping charge).  Defendant opted not to raise
  such a defense below, and none could be raised in view of the fact that the
  victim escaped from defendant's restraint.  As a result, defendant is not
  eligible for the lesser sentence because he was convicted of attempted
  kidnapping and mitigation was not an issue.

       ¶  8.  Nonetheless, defendant argues that an attempted kidnapping
  should be sentenced at the lesser penalty because under some circumstances
  a kidnapper would be better off to complete the crime and release the
  victim unharmed.  In that case, the kidnapper would receive a lesser
  sentence than defendant did for an attempted kidnapping for conduct
  defendant views as presenting the same ultimate harm to the victim. 
  Defendant argues that it is absurd to punish attempted kidnapping in this
  manner, and contends the sentence is constitutionally disproportionate to
  the offense.  
   
       ¶  9.  As to defendant's statutory claim, the Legislature created
  the penalty scheme and chose to treat attempt crimes in the same manner as
  the underlying substantive offense.  Because the legislation is
  unambiguous, we must enforce it as written.  The penalty imposed was within
  the statutory range.  Moreover, we cannot say that the sentence is
  unconstitutionally disproportionate to the offense.  To meet this standard,
  the penalty must be "clearly out of all just proportion to the offense."
  State v. Venman, 151 Vt. 561, 572, 564 A.2d 574, 581 (1989) (internal
  quotation marks omitted).  Comparing the crime committed by defendant to
  the sentence imposed, we cannot conclude that the sentence meets this
  constitutional standard.  The crime was charged as attempt because the
  victim escaped, but the initial restraint was accomplished with violence,
  and was reinitiated with violence and a weapon each time the victim managed
  to get away from defendant.  Eventually, defendant punched the victim and
  hit her in the face in an attempt to subdue her and shut her up.  He did
  not cease his pursuit of her as she struggled to get away.  There is no
  evidence in the facts that defendant affirmatively abandoned his pursuit of
  the crime.  Thus, defendant is asking to have a lesser penalty imposed
  because he was unsuccessful in committing a crime he clearly intended.  We
  cannot say that sentencing this attempt crime in the same manner as the
  completed crime, as the Legislature has decreed, is constitutionally
  disproportionate.

       Affirmed.      



                                       BY THE COURT:



                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned