Drugs, Sex, and ‘Rock’ and Roll: Part Two

By Andrew Delaney

State v. Faham, 2011 VT 55 (mem.)

So here’s the thing. 

Lying on top of a woman and threatening to kill her unless she has sex with you is attempted sexual assault.  Just in case anybody was unclear on that.

Defendant appealed his conviction for attempted sexual assault, arguing that (1) the evidence was insufficient to convict him, and (2) the trial court denied him an opportunity to present a complete and adequate defense when it precluded him from introducing evidence of the complainant’s prior drug use.  The SCOV affirmed.

Here is the Complainant’s story.  Defendant pulled up alongside her in his truck in downtown Burlington.  He offered a marijuana-smoking ride in his car, and she accepted.  What a long, strange trip it turned out to be, however, and Complainant reported being scared because Defendant wouldn’t tell her where they were going.

They ended up on a dirt road in an isolated area of Charlotte, where Defendant exited the truck, went behind it, and changed his clothes.  Defendant reentered the truck, got on top of complainant and started choking her.  He told her that if she didn’t have sex with him, he would kill her.  She pleaded with Defendant, and he eased up a bit.  She was able to get out of the truck, but Defendant caught up with her.  She asked Defendant not to hurt her, and he said he “had a lot of problems” and told her to get out of there.  He then got in the truck and drove away.  

Complainant hid behind a tree for a little while because she was scared and didn’t know what defendant was going to do.  She then ran toward a light, eventually arriving at Bethany Myrick’s home.  Complainant was visibly upset, and after she told Ms. Myrick her story, Ms. Myrick called the police.

The state trooper who responded also observed that the Complainant seemed scared.  Complainant described defendant’s vehicle and took the trooper to where the truck had been parked.  The trooper saw footprints and found a button and a handcuff key on a chain.  The trooper searched the immediate area for defendant but did not locate him. 

But of course, Defendant had just been pulled over by the Burlington police.  So, the trooper went to look into it.  Defendant said he’d been alone all evening and was working.  Defendant’s pants were unzipped, his shirt was on inside out, and the shirt was missing a button (which matched the button from the scene).  Defendant explained that (1) he was going to the bathroom, (2) he chose to wear his shirt inside out, and (3) his shirt “came like that.”

Defendant later admitted to the police that he had picked the Complainant up to “smoke reefer.”  As Defendant explained it, he made his “move” and was “rejected.” 

We are going to call Defendant’s story the Chevy Van defense based on the Sammy Johns song.  

According to Defendant, Complainant had been on two previous rides with him, one of which involved consensual oral sex.  He saw her on the street in Burlington, and asked her where he could buy some marijuana and crack-cocaine.  She took him to a house, where she went in and bought the drugs with money he supplied.  They then drove around smoking the mixture.  Defendant claimed that she had him driving around in circles and that it was her idea to go to Charlotte.

Defendant testified that after he parked in Charlotte, they smoked some more of the mixture and started to kiss.  He then “tried to make a move.”  She rejected him, and he got angry and kicked her out of the truck.    He claimed that although he physically removed her from his vehicle, by dragging her out by her arms, he didn’t assault or threaten her.  Afterward, he did drive toward her, and he gunned the engine a bit to make her move out of the way.  He admitted that the handcuff key at the scene was his.

The jury convicted defendant of attempted sexual assault and he filed post-verdict motions for acquittal and a new trial.  Both were denied and he appealed.  Defendant’s first argument on appeal was that the evidence was insufficient to convict him, specifically that the evidence was insufficient to show that Defendant attempted to engage in a sexual act with complainant.  But because Defendant failed to make this specific argument in his post-verdict motion for acquittal, the issue was unpreserved for appeal and the SCOV refuses to consider it. 

The problem is that a sufficiency of the evidence claim comes with a high standard and small chance of success under even the best of circumstances.  When coupled with the failure to preserve, the SCOV has double the reason to deny the argument and avoid even a cursory analysis of the merits. 

Defendant’s other argument was that the trial court denied him an opportunity to present a complete and adequate defense when it precluded him from introducing evidence of the complainant’s prior drug use.  Like another recent case, this case involved an automobile ride and smoking crack-cocaine.  But it all boils down to what the trial lawyer makes for an offer of proof.  A callous observer, such as myself, might say, “At trial, you essentially need to show that Complainant’s relationship to Defendant was crack-whore to user.”  And while I realize that’s a very crude way of putting it, that’s the fundamental point the SCOV makes on this claim of error.

At the trial court level, Defendant argued that the evidence of the complainant’s prior drug use would show her general habit (see Rule of Evidence 406) of getting into cars with men for drug use and “other acts.”  The trial court ruled that Defendant’s proffered evidence as to Complainant’s prior experience with Defendant was admissible, but other evidence of her prior drug use was excluded under 403 because it would confuse the issues and be time consuming.  The trial court also ruled that Defendant’s prior drug use evidence did not rise to the level of “habit” evidence and was impermissible character evidence under 406.

On appeal, the SCOV finds that Defendant’s evidence was properly denied for the purpose that Defendant proposed.  But, the SCOV notes that Defendant failed to offer the prior drug use evidence for the more specific purposes of showing why Complaint might have lied about the incident and to support Defendant’s contention that Complaint wanted to stay in the truck and continue getting high. 

In other words, Defendant offered the prior drug use evidence in an attempt to show that Complainant was the type of girl who would get in cars with men who were holding.  But he could have and probably should have offered the evidence to flesh out Complainant’s relationship with Defendant and to show why she would get angry and upset when Defendant tried to change the evening’s activity from drugs to sex too quickly.  The SCOV also notes that Defendant had at least four opportunities to do this and that his other offers were simply too weak to preserve such a specific theory for appeal. 

Thus, the SCOV reviews the trial court’s exclusion of evidence of the complainant’s prior drug use under the plain error standard.  The SCOV notes the trial court had broad discretion in making its rulings and that none of the trial court’s rulings on the proffered evidence rose to the level of plain error.  The SCOV also reasons that a goodly amount of the evidence that Defendant claimed he was precluded from introducing got in anyway.  Accordingly, the SCOV finds that the “trial court did not commit plain error, if error at all, in excluding the evidence” and affirmed defendant’s conviction.

Seeing as this is the second reported sexual-assault case within a year involving Burlington, crack-cocaine, and automobile rides, we conclude that the combination of these three elements should be avoided if at all possible.