State v. Robert E. Stephens, 250 A.3d 601

Background

Defendant was charged with attempted sexual assault (13 V.S.A. § 3252(a)(1)) for "attempting to put his penis in contact with [complainant]’s anus" during an encounter on July 16, 2016; trial was June 19–21, 2018, and conviction followed; sentence imposed June 2019 (8 years to life).
Complainant testified defendant led her down an outdoor stairwell, pushed her against a railing from behind, grabbed her breasts and genitals, pressed his erect penis against her "ass," put on a condom, ejaculated on her pants, and then fled up the stairs.
Defendant was later questioned by police at a residence the same night; after being told police would likely return to obtain a DNA sample, surveillance video showed him leaving the residence with packed bags around 2:00 a.m.; he was later arrested in New York on unrelated charges and extradited to Vermont.
Before trial, defendant proffered evidence of a single prior consensual sex-for-drugs encounter (Oct/Nov 2015) with the complainant; the trial court excluded it under Vermont’s rape-shield law as not reasonably contemporaneous or sufficiently probative.
Defendant appealed raising multiple claims: (1) IAD violation (timing), (2) insufficiency of evidence and erroneous jury instruction permitting conviction for uncharged conduct, (3) erroneous exclusion of prior-sex evidence under rape-shield law, (4) improper admission of flight evidence and failure to give a limiting instruction, and (5) request for a new trial based on newly discovered evidence (a Facebook post). The Supreme Court affirmed on all issues.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument	Held
Interstate Agreement on Detainers (IAD) timeliness	§1503(a) 180‑day trial clock starts when the sending state transmits IAD paperwork; Vermont timely brought defendant to trial after extradition.	180‑day period was triggered earlier (defendant’s March 2017 letter) and final disposition (sentencing) occurred after the 180 days, requiring vacatur.	Court: 180‑day clock is measured to when defendant is "brought to trial;" sending state’s December 2017 transmission triggered the clock; conviction not vacated.
Sufficiency of evidence that charged act (penis‑to‑anus contact) was attempted	Complainant’s testimony that defendant pressed his erect penis against her "ass" from behind, condom observed, and ejaculation supports a finding beyond a reasonable doubt of attempted penis‑to‑anus contact.	Testimony was equivocal or inconsistent (complainant also said he attempted to enter her vagina); positioning alone is inconclusive; State failed to prove the specific charged act.	Court: viewing evidence in State’s favor, a reasonable jury could find attempt to contact the anus beyond a reasonable doubt; sufficiency upheld.
Jury instruction on "a sexual act" vs. the specific charged act	Instruction as a whole identified the charged act; jurors were not prejudiced and defendant was on notice; no forfeiture of defense.	Court’s definition of "a sexual act" (listing many acts) permitted conviction for conduct other than the charged penis‑to‑anus contact; plain error.	Court: although wording could have been clearer, read in context (court’s repeated statements and counsel’s closing), no plain error; conviction stands.
Exclusion of prior sexual encounter (rape‑shield)	Proffered single encounter ~9 months earlier was not reasonably contemporaneous and had little probative value on consent; exclusion proper.	Prior sex‑for‑drugs encounter (Oct/Nov 2015) bore on consent and credibility and should have been admitted.	Court: trial court did not abuse discretion; exclusion proper under §3255(a)(3)(A).
Admission of flight video and omission of limiting instruction	Video admissible as circumstantial evidence of consciousness of guilt given timing (left soon after police interview and warning about DNA); omission of a requested limiting instruction was not raised and, even reviewed for plain error, did not undermine verdict given strong other evidence.	Video was unduly prejudicial; alternative innocent explanations existed; court should have given a limiting instruction and exclusion or caution was required.	Court: admission was within discretion; failure to give an unrequested limiting instruction was not plain error given the totality of evidence.
Motion for new trial — newly discovered evidence (Facebook post)	Post was at most impeachment/motive evidence and would not likely change the outcome; motion properly denied.	Post made by complainant the day after trial testimony shows vindictiveness and false testimony; warrants new trial.	Court: trial court did not abuse discretion; post was speculative, impeachment only, and unlikely to change result; motion denied.

Key Cases Cited

State v. Kolibas, 48 A.3d 610 (Vt. 2012) (information must give notice of precise conduct alleged)
State v. Devoid, 8 A.3d 1076 (Vt. 2010) (elements of attempt: intent plus overt act)
State v. Jones, 206 A.3d 153 (Vt. 2019) (sufficiency review defers to jury; no speculation)
State v. Discola, 184 A.3d 1177 (Vt. 2018) (intent usually proven by circumstantial evidence)
State v. Perrillo, 649 A.2d 1031 (Vt. 1994) (framework for assessing probative value of flight evidence)
State v. Scales, 164 A.3d 652 (Vt. 2017) (consciousness‑of‑guilt evidence and limiting instructions)
State v. Welch, 228 A.3d 85 (Vt. 2020) (best practice to give limiting instruction on flight; omission not always reversible)
State v. Gonyaw, 507 A.2d 944 (Vt. 1986) (rape‑shield exception when prior consensual sexual activity is reasonably contemporaneous and probative)
State v. Lavalette, 578 A.2d 108 (Vt. 1990) (trial court discretion to exclude prior sexual‑conduct evidence that is remote)
State v. Bruno, 60 A.3d 610 (Vt. 2012) (standards for new trial based on newly discovered evidence)
State v. Shreiner, 944 A.2d 250 (Vt. 2007) (new‑trial motions viewed with caution)