2012 VT 50


State v. Burke (2010-437)
 
2012 VT 50
 
[Filed 14-Jun-2012]
 
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 by email at: JUD.Reporter@state.vt.us or by
first class mail at: 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.
 
 

2012 VT 50

 

No. 2010-437

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Criminal Division


 


 


James T. Burke


December Term, 2011


 


 


 


 


Matthew
  I. Katz, J.


 

William H. Sorrell, Attorney General, and David Tartter
Assistant Attorney General, Montpelier,
  for Plaintiff-Appellee.
 
James T. Burke, Pro Se, Newport,
Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Burgess and Robinson, JJ.
 
 
¶ 1.            
REIBER, C.J.   Pro se defendant James Burke appeals his
sexual assault conviction under 13 V.S.A. § 3252(a)(1)
and resulting eighteen-to-twenty-year sentence.  Defendant contends that:
(1) he was denied a speedy trial; (2) the trial court abused its discretion by
excluding evidence that complainant made false accusations of sexual assault in
the past; (3) the court erred by refusing to allow him to present evidence of complainant’s
past convictions; (4) the court erred by denying his motion to proceed pro se
and by ordering him shackled in court; (5) the court improperly imposed a fixed
term of imprisonment; and (6) the court should have granted his motion for a
new trial.*  We
affirm.
¶ 2.            
The facts are largely contested.  On July 24, 2004, defendant met
complainant at the Day Station—a resource for finding employment—in Burlington.
 Complainant was homeless and had been sleeping in a sleeping bag
outside.  Defendant invited her to his residence, telling complainant that he had a bedroom available
for rent.  While en route, the two detoured to pick marijuana and
buy wine.  After they arrived at defendant’s home, complainant and
defendant had a few glasses of wine.  At this point, the parties’ stories
diverge.  
¶ 3.            
Complainant testified that she began to feel weird, fuzzy, and a lot
more intoxicated than she would have expected from that amount of wine.  Complainant
recalled that defendant extended his hand across the couch to touch her, and
that she moved in the opposite direction.  She alleged that the next thing
she remembered clearly was waking up in defendant’s room alone.
 Complainant had vague memories of being naked and feeling paralyzed on
defendant’s floor, and of defendant having sex with her.  At some point,
she recalled pushing defendant off of her, rolling over, and crying. 
Complainant also testified to hearing the sound of an electric razor and later discovering
that defendant had shaved her pubic area and armpits. Complainant asserted at
trial that she never consented to contact with defendant, and that, before they
arrived at defendant’s home, she had made it clear that she was not interested
in a sexual relationship.  
¶ 4.            
Defendant testified that he and complainant were co-venturers—that
they voluntarily drank wine, smoked marijuana, and had consensual sex. 
Defendant contended that complainant’s testimony—specifically that she was
unconscious for most of her time in the home—is false.  He testified that,
throughout the day, complainant became “friendlier and friendlier,” that she
never indicated that she did not want to be touched, and in fact initiated
intercourse, and at no time seemed like she was not thinking clearly. 
Defendant claimed that complainant left his residence on good terms with him
the following morning, that he never administered any drugs to complainant
without her knowledge, and that complainant created the sexual assault story
later.  
¶ 5.            
Defendant further testified to the following.  After complainant
arrived at his trailer, she drank her glass of wine quickly and then asked for
a refill.  They smoked marijuana and continued to drink wine. 
Defendant then began to feel dizzy and left complainant on the couch while he
fell asleep in his bedroom.  When he awoke, complainant was sitting
against the headboard of his bed; she had thrown up on her clothes and the
bed.  Defendant took the sheets off the bed and left to get complainant a
clean shirt.  On his way back to the bathroom, defendant heard his
electric razor, and when he entered the bathroom, complainant was shaving her
armpits and pubic hair.  Afterward, complainant joined defendant on the
couch, and they had consensual intercourse.  In the morning, defendant
left to get breakfast, they ate, and defendant kissed complainant
goodbye.  After complainant left, defendant cleaned his trailer and
noticed that his laptop computer, five twenty-dollar bills,
and a kitchen knife were missing.  He found two hypodermic needles on the
floor of his bathroom and a shirt with blood in it in an area of the arm
consistent with where one would inject oneself.
¶ 6.            
On the morning of July 26, approximately twenty-four hours after she
left defendant’s trailer, complainant went to Fletcher Allen Hospital and
reported that defendant had sexually assaulted her.  Two police officers
searched defendant’s home.  After returning to the station, one of the
officers received a phone call from defendant inquiring why police had been at
his residence and why they had removed various items.  The court issued an
arrest warrant for defendant on July 28, 2004.  Fifteen months elapsed
before police arrested defendant on October 19, 2005.    
¶ 7.            
The procedural history of this case is lengthy and convoluted. 
Between October 20, 2005, when defendant was arraigned, and May 10, 2010, when
the trial commenced, defendant filed approximately 190 motions—in writing and
orally on the record—including motions to disqualify three trial court judges,
a motion to disqualify a prosecutor, and nineteen motions for sanctions. 
Defendant requested a speedy trial at his arraignment on October 20, 2005, and
the court offered to schedule a jury draw in either November or December of
that year.  Defendant requested that the trial be scheduled in February,
and the court made accommodations, indicating that it would schedule a jury draw
for the trial in February 2006.  Between October and February, defendant,
acting pro se, filed approximately thirty motions.  Defendant was notified
that each time he filed a motion, it stopped the
“speedy trial clock.” 
¶ 8.            
Defendant made various other requests.  On December 12, 2005,
defendant, still pro se, requested that the court have the wine and
vomit-stained bed sheet tested for drug residue, despite being told that
analysis would take approximately six months.  Defendant also took the position
that he wished to delay taking depositions until the test results came
back.  On July 2, 2007, over a year and a half later, and against the
court’s strong recommendation to the contrary, defendant continued to stress
that he was not ready to begin taking depositions because the discovery process
was ongoing.  A month and half later, defendant again stated that he
“specifically requested to hold off on depositions until the discovery is
completed.”  
¶ 9.            
During the course of pretrial proceedings, defendant expressed
discontent with various appointed counsel.  Defendant initially waived his
right to an attorney at his arraignment, but requested that the judge appoint
standby counsel to assist him in serving subpoenas.  The judge denied this
request, but reiterated that defendant was entitled to have full-time counsel
appointed at any time, if he was eligible.  Defendant indicated that he
preferred to wait for another judge who would grant him standby counsel. 
In January 2007, defendant requested that the judge appoint an attorney
practicing outside of Chittenden County, explaining that he had conflicts with
all of the attorneys in the county.  Between October 2007 and February
2008, defendant requested, was provided with, and then dismissed, standby
counsel.  Defendant had stated that he thought an attorney could be
helpful in deposing people, but later asserted that his attorney was
“interfering with [his] pro se defense” and he was “done.” 
¶ 10.         By
mid-April 2008, defendant, acting pro se, began depositions.  At a status
conference on September 23, 2008, the court set a jury draw date for December
8, but defendant again objected, declaring, “I think it’s premature to be
talking about a jury draw when we’re—we’re still in the process of obtaining
discovery.”  
¶ 11.         Between
November 2008 and January 2009, the parties disagreed about the manner in which
complainant’s deposition would be taken.  Defendant initially agreed to a
written deposition, indicating that he had approximately 800 questions, not
including follow up, which he intended to submit to the State. After defendant
submitted 666 questions, the State objected, and defendant asked the court to
authorize him to conduct the depositions on his own.  In the meantime,
defendant filed a motion for court-appointed full-time counsel, which the court
granted on January 7, 2009.  The court, in turn, ordered that defendant’s
newly appointed counsel conduct the depositions.  On January 13, 2009, the
Office of the Defender General reappointed the standby attorney that defendant
had previously dismissed to serve as defendant’s full-time counsel.  The
court ordered defendant to complete his depositions by the end of August. 
Defendant’s attorney filed complainant’s deposition on September 18,
2009.  
¶ 12.         Throughout
pretrial proceedings, the court reprimanded defendant for his language and
behavior several times.  In April 2008, defendant allegedly threatened the
deputy state’s attorney after a day of depositions and was arrested for
obstruction of justice.  At a hearing on October 14, 2009, defendant
sought to dismiss his court-appointed counsel, but the court questioned whether
he was competent to proceed pro se.  During the
hearing, the judge observed:
[defendant]
never spoke at a normal volume.  He constantly repeated his arguments
regardless of the questions or statements of the other participants.  He
interrupted everyone, including the judge, continuously.  He strung
together sentences without the slightest pause as he worked himself into a frenzy and remained in an excited state throughout the
hearing.  He was so overcome with emotion that he was never able to listen
and respond appropriately to the statements or questions of others.  
 
Defendant insulted
and cursed at his attorney, the state’s attorney, and the court more than 100
times during the thirty-five minute hearing.  Although the court
determined the defendant was competent to stand trial after psychiatric
evaluations in 2004 and 2006, the court concluded that, given his previous
misconduct, “it is naïve to expect that [defendant] would control himself were
he to represent himself during trial.”  Thus, noting that the right to
self-representation is not absolute, the court concluded that through his long
course of disruptive behavior, defendant had forfeited his right to represent
himself.  
¶ 13.         Trial
commenced on May 10, 2010.  After a four-day trial, the jury convicted
defendant of sexual assault.  On May 19, defendant, acting pro se, filed a
motion for judgment of acquittal, and the following day, he filed a motion for
a new trial.  Defendant argued that he was denied a speedy trial, and that
the trial court abused its discretion in precluding him from admitting evidence
regarding complainant’s alleged false accusation of sexual assault against a
third party and evidence regarding complainant’s past convictions.  He
also argued that the court wrongfully denied him his right to proceed pro se,
wrongfully ordered him shackled during trial, and unlawfully imposed a fixed
term of imprisonment.  Finally, defendant contended that both counsel and
the court were guilty of misconduct, and that the court erred by denying his
motion to recuse the trial judge and refusing to give
a jury instruction on a lesser included offense.  On November 8, 2010, the
trial court denied defendant’s motion for judgment of acquittal and his motion
for a new trial.  This appeal followed.  
¶ 14.         The
first claim defendant raises on appeal is that he was denied a speedy
trial—specifically, that the State caused numerous delays, including
rescheduling and canceling status conferences.  As the trial court is in
the best position to determine the weight and sufficiency of the evidence, we
use a clearly erroneous standard to review underlying facts found by the
court.  State v. Brillon 2008 VT 35, ¶
14, 183 Vt. 475, 955 A.2d 1108, rev’d
on other grounds, 129 S. Ct. 1283 (2009).  We review the
ultimate legal question of whether the findings and underlying facts present a
violation of defendant’s constitutional right to a speedy trial de novo.  Id. 
In making a speedy trial determination, we use a balancing test, which weighs
the conduct of the prosecution and defendant while examining: “(1) the length
of delay; (2) the reason for the delay; (3) the extent to which the defendant
asserted the speedy trial right; and (4) any prejudice that accrued to the
defendant as a result of the delay.”  State v. Vargas,
2009 VT 31, ¶ 11, 185 Vt. 629, 971 A.2d 665 (mem.).
¶ 15.         The
first factor—the length of delay—acts as a gatekeeper and must be met in order
to trigger review of the other factors.  Barker v. Wingo, 407 U.S. 514, 530 (1972).  The
length of delay is considered without regard to the reasons for the
delay.  Id.  In this case, the delay spanned from October 19,
2005, when defendant was arrested, to May 10, 2010, when the trial began. 
The State concedes that the length of delay here is significant, and therefore
we turn to the other factors.  
¶ 16.         The
second factor is the reason for delay.  Delay caused by the defense, even
where counsel is assigned, weighs against defendant’s argument.  Brillon,
129 S. Ct. at 1290.  Throughout the proceedings, defendant filed a
multitude of motions, including motions to recuse
three different judges, a motion to disqualify a prosecutor, and motions for
sanctions.  To illustrate, the record indicates that on March 3, 2008, the
number of motions exceeded what the computer allowed and therefore all motions
filed after March 2 would be “entered as documents and done on handwritten
motion reactions.”  Defendant was told that each time he filed a motion, it stopped the “speedy trial clock.”  Further
delay occurred when defendant requested various experts and evidence analysis,
and requested counsel whom he later refused to accept.  Defendant’s
continuous refusal to begin taking depositions further delayed the
process.  The reasons for the nearly five-year delay in this case were
primarily caused by defendant’s own actions and are therefore weighed against
defendant in a speedy trial determination.  
¶ 17.         The
third factor weighed in a speedy trial determination is the extent to which the
defendant asserted the speedy trial right.  Defendant raised his right to
a speedy trial promptly on October 20, 2005 at his arraignment, and at least
four times thereafter.  However, defendant’s assertion of his right to a
speedy trial was often simultaneous with his own actions to postpone trial, and
his actions cast doubt on the sincerity of his request.  For example, as
early as October 20, 2005, at defendant’s arraignment, the court offered to
schedule a jury draw in either November or December of that year, but defendant
requested that it be pushed back to February.  
¶ 18.         The
final factor in a speedy trial determination is whether any prejudice accrued
to defendant as a result of the delay.  Vargas,
2009 VT 31, ¶ 16.  Prejudice may be marked by defendant being
incarcerated for a lengthy period of time before trial, defendant suffering
anxiety, or defendant’s case at trial being impaired, with the most
consideration given to the latter element.  See Barker, 407 U.S. at
532.  An affirmative demonstration of prejudice is not necessary to prove
a denial of the right to a speedy trial, but we “recognize that excessive delay
presumptively compromises the reliability of a trial in ways that neither party
can prove or, for that matter, identify.”  Doggett v.
United States, 505 U.S. 647, 655 (1992).  In this case,
defendant caused significant delay, and cannot now assert that he has
prejudiced himself.  Given that defendant largely brought delay upon
himself through his motion practice and refusal of earlier trial dates, we
conclude that defendant was not denied a speedy trial.
¶ 19.         The
second issue defendant raises on appeal is that the trial court abused its
discretion in precluding him from admitting evidence regarding an alleged false
accusation of sexual assault made by complainant.  Purportedly,
complainant and complainant’s friend accused a third party of sexually
assaulting complainant’s friend.  Defendant claims that evidence regarding
this alleged false accusation should have been admitted under an exception to
Vermont’s Rape Shield law.  The Rape Shield law provides that:
Evidence of prior
sexual conduct of the complaining witness shall not be admitted; provided,
however, where it bears on the credibility of the witness or it is material to
a fact at issue and its probative value outweighs its private character, the court
may admit: . . . [e]vidence of
specific instances of the complaining witness’s past false allegations of
violations of this chapter.
 
13 V.S.A § 3255(a)(3)(C).  
¶ 20.         Defendant
contends that Judge Keller initially indicated that he would allow defendant to
utilize the Rape Shield exception described above, but that Judge Katz refused
to allow the evidence.  Despite defendant’s contention, the record does
not support this argument.  Judge Keller deferred the decision until
trial, stating that the exception did not apply and that the evidence might
come in under a different rule of evidence.  Even if Judge Keller had
ruled that the evidence was admissible under the Rape Shield exception, this
ruling had no binding effect on Judge Katz since pretrial rulings are tentative
and subject to change.  State v. Bruno, 157 Vt.
6, 8, 595 A.3d 272, 273 (1991).  The evidence was ultimately
excluded at trial, and that ruling was later affirmed in a post-trial entry
order that responded to defendant’s motion for a new trial.  The Rape
Shield law does not apply in this case because the evidence did not relate to
the “prior sexual conduct” of the complainant.  Nor does the exception
apply because the evidence did not relate to a prior false allegation of sexual
assault of complainant.  Thus, there was no error relating to the Rape
Shield law.
¶ 21.         Since
the Rape Shield law does not apply, the evidence could be admitted if relevant
and if it met the balancing test of Vermont Rule of Evidence 403 that the probative
value of the evidence is not substantially outweighed by the danger of unfair
prejudice.  This rule gives the trial court broad discretion in balancing
probative value against other factors.  State v. Shippee, 2003 VT 106, ¶ 13, 176 Vt. 542, 839 A.2d 566 (mem.).  In the post-trial entry order, the
court explained that Rule 403 bars admission when the probative value is
low.  Here, the evidence is from an unrelated incident, a mini-trial would
have been required to determine whether the third party did assault
complainant’s friend, and the evidence would have likely distracted the jury
and confused the issues.  Therefore, because the alleged false statements
relate to a purported sexual assault by a third person upon a fourth person,
and because the probative value is very low, it was within the trial court’s
discretion to exclude this evidence.
¶ 22.         Defendant
also argues that he was deprived of his right to confront complainant
concerning her false allegations, and thus, his right of confrontation was
violated.  This claim is without merit.  Not only was complainant
thoroughly cross-examined by defendant’s attorney, but, “where the testimony
sought is of questionable impeachment value and may confuse both the witness
and the jury, exclusion of such testimony does not impinge on a defendant’s
right of confrontation and right to a fair trial.”  State
v. Hill, 174 Vt. 566, 567, 816 A.2d 440, 443 (2002) (mem.). 
As previously noted, the line of questioning that
defendant requested had low probative value and would likely confuse the
jury.  The evidence was therefore properly excluded. 
¶ 23.         Defendant
next argues that he should have been allowed to impeach complainant and
complainant’s friend—another witness introduced by the State—with evidence of
their prior convictions.  Specifically, defendant sought to introduce
evidence that complainant was convicted of property theft in 2004, and that
both complainant and her friend were convicted of aggravated assault in
2005.  We review evidentiary rulings deferentially and reverse “only when
there has been an abuse of discretion that resulted in prejudice.”  State
v. Martin, 2007 VT 96, ¶ 18, 182 Vt. 377, 944 A.2d 86 (quotation
omitted).
¶ 24.         Vermont
Rule of Evidence 609 provides that a party may attack the credibility of a
witness with a conviction of a crime if that crime “involved truthfulness or
falsification regardless of the punishment, unless the court determines that
the probative value of admitting this evidence is substantially outweighed by
the danger of unfair prejudice,” or if the crime “was a felony conviction under
the law of Vermont . . . and the court determines that the
probative value of this evidence substantially outweighs its prejudicial
effect.”  V.R.E. 609(a)(1)-(2).
¶ 25.         Defendant
sought to introduce the complainant’s alleged theft conviction under Rule 609,
insisting it met the exception for a “conviction of a crime involving moral
turpitude.”  This is no longer the standard.  See Reporter’s Notes,
V.R.E. 609 (explaining that the 1989 amendments to Rule 609(a) replaced the
“moral turpitude” standard with a “more precise and relevant” standard—crimes
involving “truthfulness or falsification”).  Regardless, the evidence
defendant provided in support of his proffer did not indicate that the
complainant was convicted, only that she was charged.  Thus, even assuming
that theft is a crime necessarily involving truthfulness, the evidence was
properly excluded by the trial court.
¶ 26.         Regarding
the evidence that complainant and her friend were convicted of aggravated
assault, defendant sought to introduce these convictions in order to highlight
his claim that the complainant falsely claimed that the victim of the
aggravated assault had sexually assaulted her friend.  In opposition to
the State’s motion in limine to exclude the
convictions, defendant argued that the “convictions will allow the jury to make
more sense of [the complainant’s] three documented false sexual assault
allegations.”  In other words, defendant’s apparent purpose in admitting
the evidence was a reiteration of his argument under the Rape Shield
statute.  Defendant’s attorney stated that, “I’m not necessarily looking
to introduce the fact that she’s got a felony conviction necessarily, but I would
like to inquire about the fact that she made the allegation and that it was
wrong.”  Because the convictions were proffered only to support the claim
that the complainant made false sexual assault allegations, evidence which was
already properly excluded under the Rape Shield law and Rule 403, any claim on
appeal that the convictions should have been admitted to impeach the
complainant’s credibility has been waived.  State v.
Brink, 2008 VT 33, ¶ 6, 183 Vt. 603, 949 A.2d 1069 (mem.) (“To properly preserve an issue for appeal a party must
present the issue with specificity and clarity in a manner which gives the
trial court a fair opportunity to rule on it.” (quotation
omitted)).
¶ 27.         Defendant
also appeals the trial court’s decision denying his motion to dismiss his
appointed attorney and proceed pro se.  In Faretta v. California, 422 U.S. 806, 814-17
(1975), the U.S. Supreme Court held that a defendant cannot be forced to accept
a public defender if he voluntarily waives his right to counsel.  Later,
in Indiana v. Edwards, 554 U.S. 164, 177-78 (2008), the Court addressed
the issue of mental competency and self-representation and held that “the
Constitution permits judges to take realistic account of the particular
defendant’s mental capacities by asking whether a defendant who seeks to
conduct his own defense at trial is mentally competent to do so.”  The
Court stated that the right to self-representation is not absolute, and may be
limited in cases involving serious obstructionist conduct.  554 U.S. at
171 (citing Faretta, 533 U.S. at 834 n.46).  The Court distinguished between the
“minimal constitutional requirement that measures a defendant’s ability to
stand trial and a somewhat higher standard that measures mental fitness for
another legal purpose.”  Id. at 172.
¶ 28.         The
trial judge made a reasoned decision amply supported by the record.  The
trial judge had extensive interaction with defendant before rejecting
defendant’s motion to represent himself.  It is
clear from the record that defendant was prone to yelling, outbursts, and
threatening behavior, and that he was unable to listen to and take direction
from the trial judge.  Permitting defendant to proceed
pro se, when his capacity to do so is questionable, could potentially undercut
a fundamental constitutional criminal law objective—providing a fair
trial.  Id. at 176-77.  Given
defendant’s ongoing and extensively documented behavioral issues, we are
satisfied that the trial court had sufficient evidence to support its finding
that defendant had waived his right to represent himself.
¶ 29.         Defendant
next argues that the trial court erred in requiring him to be shackled during
trial.  We review the trial court’s ruling on this point for abuse of
discretion.  State v. Lee, 2008 VT 128, ¶ 23, 185 Vt. 110, 967 A.2d 1161.  The U.S. Supreme Court looked at this
issue in Deck v. Missouri and stressed that the use of shackles may
interfere with three fundamental constitutional principles: the presumption
that the defendant is innocent until proved guilty, a defendant’s right to
counsel and to secure a meaningful defense, and maintaining a dignified
judicial process.  544 U.S. 622, 630-32 (2005). 
However, the Court also reiterated that “[t]here will be cases . . . where
these perils of shackling are unavoidable.”  Id.
at 632.  Trial courts must have discretion when making decisions
regarding the need to restrain dangerous defendants, but given the prejudicial
effect of shackles, “due process does not permit the use of visible restraints
if the trial court has not taken account of the circumstances of the particular
case.”  Id. at 632.  As in other
cases involving extraneous influences on the jury, we look to whether an
irregularity occurred, and whether it had the capacity to affect the
verdict.  Lee, 2008 VT 128, ¶ 23. 
This Court has rejected the argument that, under Deck, a mistrial must
be called if a juror briefly sees a defendant in shackles outside the
courtroom.  Id. ¶ 22.
¶ 30.         The
trial court’s decision closely tracks these principles.  On numerous
occasions, defendant threatened the State’s attorney, his own attorney, the
court, and others.  The court considered the issue carefully, but
ultimately made an “individualized security determination[]”
that shackles were required to protect the public and to prevent defendant from
injuring anyone.  Deck, 544 U.S. at 632. 
The court took steps to minimize attention and prejudice caused by the
shackles, including a privacy skirt around counsel table and seating defendant
in the courtroom before the jury entered.  In light of defendant’s
continual threats of physical violence, the fact that the court took
precautions to minimize prejudice, and because of the court’s detailed reasoning
on the record, we conclude that the trial court did not abuse its discretion by
ordering that defendant be shackled during trial.
¶ 31.         Defendant
also contends that the trial court violated 13 V.S.A. § 7031, which prohibits
indeterminate sentencing.  We review the trial court’s decision regarding
whether a sentence conforms to our indeterminate sentence law de novo.  State
v. Kenvin, 2011 VT 123, ¶ 18, ­___ Vt. ___, 38 A.3d 26.  Vermont’s sentencing law previously
required that defendant’s maximum sentence be no longer than the longest
possible sentence for the crime of which defendant was convicted and the
minimum sentence be not less than the shortest
possible sentence fixed by law for such offense.  13
V.S.A. § 7031(a).  The statute was amended in 2011 and now provides
that “[a] sentence shall not be considered fixed as long as the maximum and
minimum terms are not identical.”  13 V.S.A. § 7031(a). 
We have concluded that this amendment is a clarification of the law, Kenvin, 2011 VT 123, ¶ 25, and therefore the
amendment applies to defendant’s sentence.  Because the minimum and
maximum terms of defendant’s sentence are not identical, he was not sentenced
to an impermissible fixed term. 
¶ 32.         In
defendant’s motion for a new trial he argued that the evidence was insufficient
to convict him.  Defendant’s basic argument was that complainant was a
savvy adult who consented to sex with him.  The trial court’s decision on
defendant’s motion for a new trial is reviewed under an abuse of discretion
standard.  Hoague v. Cota, 140 Vt. 588, 591, 442
A.2d 1282, 1283 (1982).  The court may grant a new trial if
required in the interests of justice.  V.R.Cr.P. 33.  A Rule
33 motion made on evidentiary grounds is granted “only upon a conclusion by the
trial court that, weighing all the evidence including the credibility of
witnesses, the verdict is clearly against the weight of the evidence.” 
Reporter’s Notes, V.R.Cr.P. 33.  In general,
credibility of witnesses is a matter “entirely within the province of the jury.” 
State v. Hinchliffe, 2009 VT 111, ¶ 22, 186 Vt. 487, 987 A.2d 988. 
Here, defendant cannot demonstrate that the court abused its discretion in
denying him a new trial.  He does not present evidence that indicates the
jury issued a verdict “clearly against the weight of the evidence.”  The
parties stipulated that they had intercourse—the only issue was whether
complainant consented.  As defendant states many times, this was a case of
“he said-she said.”  Defendant testified that complainant consented, whereas
complainant testified she did not.  Ultimately the jury believed
complainant, and we cannot overturn that decision on appeal. 
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 
 





*  To the extent
that defendant raises other issues in his brief, the claims have no merit or
are inadequately briefed, or both, and are therefore not addressed in this
opinion.  



