Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-368

                                          MAY TERM, 2011

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }
    v.                                                 }    Superior Court, Franklin Unit,
                                                       }    Criminal Division
                                                       }
 Sulaiman Jadallah                                     }    DOCKET NO. 199-2-09 Frcr

                                                            Trial Judge: Mark J. Keller

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

        Defendant appeals his jury conviction of lewd and lascivious conduct, arguing that the
trial court’s jury instructions did not allow the jury to consider his theory of defense. We affirm.

        Defendant was charged with engaging in lewd and lascivious conduct based on an
incident that took place in the complainant’s home. Defendant, the owner of a restaurant, was
considering purchasing cakes made by the complainant and was at her home ostensibly to look at
her website. At one point, he attempted to kiss the complainant, but she told him that it was too
soon after a recent separation from her husband. Later, defendant pressed his body against the
complainant’s breasts on her couch, and she again told him that she was not interested.
Defendant then asked the complainant to show him her breasts, and the parties moved to the
bathroom, where defendant attempted to remove the complainant’s sweater. When he had
trouble doing so, the complainant loosened her belt and lifted her sweater up. She testified that
she complied with defendant’s request because she thought he would leave if she showed him
her breasts. Defendant asked the complainant to engage in oral sex, but she refused. He then
placed her hand on his penis and ejaculated shortly thereafter.

        At trial, the State presented the testimony of the complainant, the complainant’s mother-
in-law, and the detective who had interviewed defendant. The defense did not present any
witnesses. Following trial, the jury convicted defendant of the charged offense, and the trial
court sentenced him to a term of one-to-five years, all suspended except nine months.

        On appeal, defendant argues that the trial court committed reversible error by failing to
include a jury instruction that allowed the jury to consider his theory of defense. Defendant
asserts that his theory of defense was that he was getting mixed messages from the complainant
and therefore reasonably believed that she was consenting to his conduct, irrespective of her
actual subjective intent. According to defendant, at trial he was not suggesting that the
complainant actually consented, but rather that he reasonably believed that she was consenting,
even if she was not. In defendant’s view, given this theory of defense, the court was obligated to
give the jury a mistaken-belief instruction similar to the one set forth in People v. Mayberry, 542
P.2d 1337 (Cal. 1975).
        The glaring problem with this argument is that it is being raised for the first time on
appeal. Rather than make a plain-error argument, defendant tries unsuccessfully to convert the
small part of his proposed instruction that the trial court rejected into a requested mistaken-belief
instruction. It does not hold up. The trial court accepted most of defendant’s proposed jury
instruction but declined to instruct the jury that all sexual conduct tends to excite lust and that
they should not consider whether they would engage in similar conduct. These rejected
proposed instructions are unrelated to the ideal instruction that defendant, on appeal, suggests the
trial court should have given—that even if you (the jurors) conclude that the complainant did not
consent to defendant’s conduct, you can find defendant not guilty if you conclude that he
reasonably believed she consented. Defendant did not request such an instruction. Indeed,
defendant’s proposed consent instruction, which was accepted in large part by the court,
contained no language about a mistaken but reasonable belief as to consent; rather it stated that
lack of consent can be demonstrated by words or actions and may not be presumed by the mere
utterance of certain words.

        Undoubtedly, defendant proposed such an instruction because, despite his contention on
appeal that his defense at trial was that he reasonably believed the complainant consented even
though she did not, our review of the record reveals that his defense at trial was that she
consented through her actions. The trial court properly instructed the jury on this defense in the
manner requested by defendant. Defendant cannot re-characterize his defense on appeal and
then fault the trial court for not giving an instruction that he did not request. See People v.
Dominguez, 140 P.3d 866, 870-71 (Cal. 2006) (holding that defendant was not entitled to
mistaken-belief instruction with regard to victim’s consent because he did not request that
instruction at trial and evidence of his belief was insignificant).

       Affirmed.

                                              BY THE COURT:


                                              _______________________________________
                                              Denise R. Johnson, Associate Justice

                                              _______________________________________
                                              Marilyn S. Skoglund, Associate Justice

                                              _______________________________________
                                              Brian L. Burgess, Associate Justice




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