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State v. Atherton

Supreme Court of Vermont

February 26, 2016

State of Vermont
Jason Atherton a/k/a Melton

On Appeal from Superior Court, Orleans Unit, Criminal Division Howard E. Van Benthuysen, J.

Christopher C. Moll, Orleans Deputy State's Attorney, Newport, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Joshua O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


¶ 1. Defendant appeals from a judgment of conviction of sexual assault, in violation of 13 V.S.A. § 3252(a)(1). He contends: (1) the seating of two biased jurors deprived him of his right to an impartial jury; (2) the trial court committed prejudicial error by prohibiting him from using a prior conviction to impeach a witness; and (3) the prosecutor's comments during closing argument violated his right to a fair trial. We affirm.

¶ 2. The events that resulted in this conviction and appeal occurred during the late evening and early morning hours of October 26 and 27, 2012. All of the principal witnesses- the complainant K.M. and her two friends, M.B. and H.D.-testified that, along with defendant, they met at M.B.'s apartment in the City of Newport on the evening in question before driving to a bar in the Town of Barton. All of the witnesses recalled that several of them, including K.M., consumed alcohol and smoked marijuana before they entered the bar, but denied the use of any other drugs. All of the witnesses further testified that, after leaving the bar, they returned to M.B.'s apartment with defendant. All confirmed that K.M. and M.B. went to sleep in the bedroom, while H.D. and defendant went to sleep on a pull-out couch in the living room.

¶ 3. H.D. testified that, sometime thereafter, she felt the weight shift on the couch as defendant got up, and that she subsequently awoke to the sound of K.M. and M.B. screaming. H.D. then observed M.B. yelling at defendant, "[t]aking swings at him and pushing him out the door, " and saw K.M. "curled up in a fetal position hysterical and sobbing."[1]

¶ 4. M.B. testified that she awoke "to the bed moving" and saw defendant on top of K.M. She observed that K.M. appeared to be asleep because she was lying on her back and snoring, and defendant "was in between her legs with his face right in her face." K.M. was naked and exposed. It appeared to M.B. that defendant was engaged in sexual intercourse, although she could not see clearly to confirm this. M.B. testified that she immediately yelled at defendant and pushed him off of K.M., hit him, and physically forced him out of the apartment.

¶ 5. K.M. testified that she awoke to the sound of M.B. screaming at defendant to "get off of her, " and saw defendant on top of her. She was naked, and felt defendant's penis inside of her. She recalled that, after M.B. forced defendant off of her, she "curled in a fetal position and cried." K.M.'s mother brought her to a hospital, where she underwent a sexual-assault examination, and was interviewed by an officer with the State Special Investigations Unit. The examination revealed no identifiable sperm, and DNA samples from K.M.'s underwear did not match defendant.

¶ 6. The investigating officer testified that she interviewed defendant two days after the incident. Defendant confirmed that he was with H.D., M.B., and K.M. on the evening in question and that he returned with them to M.B.'s apartment, but indicated that he then left. Defendant introduced the officer's arrest summary, which noted that defendant also reported the use of drugs that evening, including the snorting of Ritalin.

¶ 7. Defendant moved for judgment of acquittal at the conclusion of the State's case. The court denied the motion. Defendant chose not to testify, and the defense rested without presenting any evidence. Following closing arguments and the court's instructions, the jury returned a verdict of guilty. This appeal followed.


¶ 8. Defendant contends that his constitutional right to an impartial jury was violated by the empaneling of two allegedly biased jurors. The claim is predicated on the written responses of two jurors on questionnaires distributed prior to the jury voir dire. Both checked the "Yes" boxes in responding to a series of questions as to whether they had "ever known anyone who was a victim" of lewd and lascivious conduct or sexual assault, and, if so, whether it "would affect [their] ability to be fair and impartial." As discussed more fully below, defense counsel referred specifically to these questions during voir dire, observing: "There are some sensitive questions that were dealt with in your questionnaires. A number of you have mentioned that you had a friend, family member, or someone close to you who was the victim of sexual assault or lewd and lascivious conduct."[2] Counsel then asked whether "any of you feel that because you have that connection, it would make it hard for you to be impartial on this jury? No." As counsel's last statement indicates, none of the jurors expressed any difficulty with ...

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