On Appeal from Superior Court, Addison Unit, Criminal Division November Term, 2012 Nancy Corsones, J.
The opinion of the court was delivered by: Reiber, C.J.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. Defendant appeals his conviction for sexual assault under 13 V.S.A. § 3252. Defendant contends that the trial court gave an improper jury instruction, mischaracterizing the law and eliminating the State's burden to prove each and every element of the crime as charged. We conclude that the jury instruction accurately reflected the law as applied to the circumstances of this case and that the instruction did not compromise defendant's ability to contest the charges against him. We therefore affirm.
¶ 2. The salient facts and procedural background are as follows. Defendant was charged with sexual assault in connection with an incident that followed an alcohol-fueled New Year's Eve party on December 31, 2009. The State alleged that defendant sexually assaulted the victim while she was unconscious in a bedroom where she had gone to sleep after feeling ill. The victim testified that she awoke in pain with defendant's penis inside of her, immediately yelled at him, and left the room.
¶ 3. Defendant, meanwhile, testified that the alleged victim called him into the bedroom. Defendant testified that he did not insert his penis into the alleged victim, but that they engaged in mutual fondling, which he claimed the victim initiated.
¶ 4. After the parties completed their cases, the court instructed the jury. As part of the initial instruction, the court indicated:
The third essential element is that [defendant] compelled [complainant] to participate in the sexual act without [complainant's] consent. "To compel" means to deliberately use force or to exert pressure to overcome the will of the other person. "Consent" means words or actions by the other person indicating a voluntary agreement to engage in a sexual act. "Consent" means consent of the will. Lack of consent may be shown if [defendant] had sexual contact with [complainant] without the opportunity for her to consent. Lack of consent may be shown without proof of resistance. [Complainant] did not consent if [defendant] knew that [complainant] was not physically capable of resisting or declining to consent to the sexual act. Alternatively, [complainant] did not consent if [defendant] knew that [complainant] was unaware that a sexual act was being committed.
¶ 5. During deliberations, the jury asked the court to "clarify what 'compel' means." The trial court drew language from State v. Hazelton, 2006 VT 121, 181 Vt. 118, 918 A.2d 224, and proposed the following: "No actual force or compulsion [was] necessary to commit the offense . . . The element of compulsion is satisfied by lack of consent alone." After discussing the proposed response with counsel, the court gave jurors a written answer over a defense objection. The answer, drawn almost verbatim from Hazelton, read:
The law prohibits a person from compelling another person to participate in a sexual act without the consent of the other person. No actual force or compulsion is necessary to commit the offense. A person is "compelled" to engage in a sexual act in violation of the law as the result of an offender's conduct to unilaterally engage another in a sexual act without consent, that is, without any indication that the victim is freely willing to participate. Consent means words or actions by a person indicating a voluntary agreement to engage in a sexual act. The element of compulsion is satisfied by lack of consent alone.
¶ 6. Defense counsel objected to the supplemental instruction, stating, in effect, that the original instruction adequately described the relevant law and that the court should not tailor a standard jury instruction to accommodate the specific factual allegation that the complainant was asleep or otherwise unaware of the assault. After deliberating for another hour, the ...