State v. Desautels

2006 VT 84, 908 A.2d 463, 180 Vt. 189, 2006 Vt. LEXIS 171
CourtSupreme Court of Vermont
DecidedAugust 11, 2006
DocketNos. 04-397 & 05-115
StatusPublished
Cited by32 cases

This text of 2006 VT 84 (State v. Desautels) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Desautels, 2006 VT 84, 908 A.2d 463, 180 Vt. 189, 2006 Vt. LEXIS 171 (Vt. 2006).

Opinion

Johnson, J.

¶ 1. Defendant appeals after jury trial from two convictions for sexual assault and one conviction for second degree domestic assault. Defendant contends the evidence was insufficient to prove beyond a reasonable doubt that the second sexual assault was compelled, and that the State failed to produce evidence on the specific sexual conduct required by both sexual assault charges. Defendant also claims he was prejudiced at trial by the erroneous admission of certain pieces of evidence and by the prosecutor’s closing argument regarding relationships marked by domestic violence. We affirm.

2. According to the evidence presented by the State at trial,1 the charges against defendant arose out of an altercation he initiated when he learned that the victim, a former girlfriend with whom he had previously lived in Richford, had a male guest in her apartment in Enosburg. Defendant came into the victim’s apartment uninvited. He was angry and attacked the victim verbally, shouting at her and using profanity. He slapped her hard in the face, causing injury to her lip. The victim’s son witnessed the beginning of the encounter and ran across the street to get help. The police were called, and a trooper came to the apartment. When the trooper arrived, he spoke to the victim and observed that she had an injury to her lip. Despite the trooper’s efforts, the victim did not cooperate and told the trooper she did not need any help.

[192]*192¶ 3. Shortly thereafter, the fight resumed, and defendant began punching the victim in the stomach. Defendant then sexually assaulted her by ripping her underwear off and shoving his hand in her vagina to see if she had had sex with another man. He forced her to perform fellatio and have vaginal sex with him despite her verbal and physical protestations. Defendant tried to get the victim to leave the apartment with him, but she refused, and he eventually left the apartment alone.

¶ 4. While defendant was gone, the victim left the apartment for a while and went to a neighbor’s home, but returned home to be with her children at around 11 p.m. Shortly thereafter, defendant returned to the victim’s home. The victim was afraid defendant would become violent if she did not let him in, so she instructed her children to open the door. Defendant was still angry and called the victim a whore. The victim then accompanied defendant into the bedroom, where they engaged in sexual activity. Throughout defendant’s second visit, the victim was upset and crying. The victim testified that she was afraid of defendant, and did not think she could refuse him. After this encounter, defendant again tried to convince her to leave with him, but she refused because she was afraid she would be killed. Defendant left the apartment, but returned a few hours later. The victim found him standing over her bed. They had sexual relations again, which the victim described as consensual, although she also said she was afraid and did not know what to do.

¶ 5. Within a few days, the victim tried to commit suicide. She was interviewed in the hospital by a detective, but she refused to cooperate with any investigation of the assault. After leaving the hospital, she continued to have some contact with defendant that suggested the relationship was continuing. In December 2002, defendant was arrested, charged, and held without bail on sexual assault and domestic assault charges. The victim was an uncooperative witness at the bail hearing. During a period of time while defendant was detained, defendant wrote numerous letters attempting to influence the victim’s testimony in his favor. These letters came to light when the victim again tried to commit suicide in January 2003, as the letters were found next to her when she was discovered unconscious. A search warrant revealed other letters of the same kind. Some letters referred to another document, not produced at trial, but described by testimony, that was a nine-page script defendant had written, telling the victim what to say at his trial and how to control the testimony of other witnesses. In February 2003, the victim finally gave a statement about the assaults that implicated defendant.

[193]*193¶ 6. As a result of the first and second sexual encounters described above, but not the third, defendant was charged with two counts of sexual assault, by penis-to-vulva contact without consent, in violation of 13 V.S.A. § 3252(a)(1), and two counts of second or subsequent offense of domestic assault, by recklessly causing bodily injury, in violation of 13 V.S.A. § 1044(a)(2).2 One count of domestic assault was dismissed by the trial court and is not at issue in this appeal. The jury convicted on the remaining counts, and defendant appealed.

I. Motion for Judgment of Acquittal

¶ 7. Defendant’s principal argument on appeal is that the trial court erred in denying his motion for judgment of acquittal, in which he claimed there was insufficient evidence to show that the second sexual encounter was compelled and without consent. In reviewing the sufficiency of the evidence to support a conviction, we take the evidence in the light most favorable to the State, excluding any modifying evidence. State v. Gibney, 2003 VT 26, ¶ 2, 175 Vt. 180, 825 A.2d 32. We agree with the trial court that the motion was properly denied. To convict defendant of sexual assault under 13 V.S.A. § 3252(a)(1)(A), the State was required to prove that he engaged in a sexual act with the victim without her consent. For the purposes of the statute, £“[c]onsent’ means words or actions by a person indicating a voluntary agreement to engage in a sexual act.” 13 V.S.A. § 3251(3). Proof of resistance is not required to show lack of consent. 13 V.S.A. §3254(1). Here, the evidence tended to show some cooperation by the victim during her second sexual encounter with defendant, but not consent. It could be inferred from the victim’s testimony that her cooperation arose out of fear of defendant, based on the violent physical and sexual assault occurring only a few hours earlier, his continuing anger, as demonstrated by his verbal abuse, and fear for her children’s safety. The victim testified that although she may have told defendant that she loved him and that she was sorry, she communicated her fear by shaking and crying throughout the second sexual encounter. Even her earlier reluctance to involve the police officers who tried to intervene could be viewed as evidence of the degree to which she feared retaliation from defendant for noncompliance with his wishes. The victim’s ac[194]*194tions were consistent with the State’s theory that her cooperation with the second sexual encounter was an attempt to keep defendant under control and avoid further violence. Looking at all of the evidence surrounding the second sexual assault, we conclude there was sufficient evidence for the jury to find beyond a reasonable doubt that the victim did not consent.

¶ 8. The second issue raised in defendant’s motion challenged both convictions for sexual assault on the ground that the State failed to prove an element of the charge of sexual assault, namely, penis-to-vulva contact. The sexual assault statute, in relevant part, defines “sexual act” as “contact between the penis and the vulva.” 13 V.S.A. § 3251(1). The victim’s testimony used words such as “had sex” or “had sexual intercourse” and that defendant “raped” her. She also said that sex meant that defendant’s penis went inside her.

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Cite This Page — Counsel Stack

Bluebook (online)
2006 VT 84, 908 A.2d 463, 180 Vt. 189, 2006 Vt. LEXIS 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-desautels-vt-2006.