Defendant appeals his convictions for unlawful trespass, first degree aggravated domestic assault, simple assault by mutual combat, and unlawful mischief. Defendant contends the trial court erred by: (1) permitting a charge of aggravated domestic assault; (2) admitting the tape of the victim’s 911 call in evidence; (3) erroneously instructing the jury on serious bodily injury and the relevance of expert medical testimony; (4) considering defendant’s silence to the presentence investigator at sentencing; (5) denying him equal access to the crime scene; (6) engaging in experimental trial procedures; (7) denying him the right of confrontation by limiting the scope of cross-examination of the victim; and (8) improperly admitting evidence of prior bad acts. We affirm.
On the evening of February 5, 1999 defendant let himself into the Westminister, Vermont home of his former girlfriend, Ellyn Benson, and went up the stairs to her bedroom where he discovered Ms. Benson with her boyfriend, Chad Simpson. Defendant claimed that he and Ms. Benson had scheduled a date to have dinner at her residence that night. Defendant and Ms. Benson came face to face at Ms. Benson’s bedroom door and began to argue. When defendant pushed Ms. Benson down to the floor, Mr. Simpson intervened, and the two men fought. After Mr. Simpson and defendant temporarily stopped fighting, all three individuals went downstairs to the living room and kitchen. While it is disputed whether defendant accompanied or dragged Ms. Benson down the stairs, the evidence at trial indicated that shortly after Ms. Benson arrived downstairs, defendant punched her in the face. After being hit, Ms. Benson tried to defuse the situation by urging Mr. Simpson to leave. With Mr. Simpson’s departure, however, defendant’s violent behavior escalated; he smashed Ms. Benson’s plates and other breakables, threw them into *105 the air, and hit Ms. Benson in the face with at least one broken piece of dishware. Defendant then punched Ms. Benson in the face again.
Ms. Benson ran outside to escape. Mr. Simpson, who was in the process of leaving, saw that Ms. Benson was bleeding from her cheek and returned to the scene to physically engage defendant. As the two men fought, Ms. Benson called 911. She spoke with the 911 operator, left the telephone line open, and went back outside. Defendant fled the scene before the police arrived. Several hours later, from the house of his attorney, defendant surrendered himself to the police.
The 911 response team administered first aid and photographed Ms; Benson’s injuries before taking her to the hospital for further treatment. The police took photographs of the crime scene and interviewed Ms. Benson the night of February 5th, and again the following day. Although the defense wanted to take its own photographs, Ms. Benson would not allow them into her home. Ms. Benson’s injuries as documented by the police photographs and affidavit, and by Ms. Benson’s testimony at trial, consisted of a black eye, a three-centimeter long and one-centimeter deep laceration on her face that required stitches, an additional small laceration to the forehead, numerous small bruises and superficial abrasions, and back pain. The larger laceration has developed into a permanent scar and the back pain continues.
Defendant was charged with unlawful trespass, first degree aggravated domestic assault, simple assault by mutual combat, and unlawful mischief. After a three-day trial, on June 30, 2000, a jury convicted defendant of all counts. Defendant appeals, alleging several different errors at trial.
Defendant’s first claim of error is that there was insufficient evidence to support a finding of serious bodily injury, and thus the charge of aggravated assault. Defendant brought motions for judgment of acquittal under V.R.CrJP. 29 at the close of the State’s case and after trial. The court denied both motions. On review of a court’s denial of a motion for judgment of acquittal we must consider “whether the evidence, when viewed in the light most favorable to the State and excluding any modifying evidence, fairly and reasonably tends to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt.”
State v. Couture,
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Title 13 V.S.A. § 1021(2) defines “serious bodily injury” as “bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health, or substantial disfigurement.” The term “substantial loss” replaced “serious, permanent disfigurement, or protracted loss” and “substantial disfigurement” was added when the Legislature amended the aggravated assault statute in 1993. Compare 1993, No. 95, § 3, with 1971, No. 222 (Adj. Sess.), § 1. Our primary objective in construing a statute is to give effect to the legislative intent.
State v. Read,
In this case, the evidence showed that the victim sustained a black eye, numerous bruises and abrasions, injury to her back, and two facial lacerations — one resulting in a permanent scar. Although the permanent facial scar was not perceivable by the jury from across the courtroom, and the other injuries were temporary, the evidence was sufficient for the jury to conclude the victim sustained “substantial disfigurement.” Neither visibility from a distance nor permanency are requisite to substantial disfigurement. See
State v. Carlson,
Defendant further argues that the jury’s determination of substantial disfigurement should have been supported by expert medical testimony. Whether a proof of an element of a crime meets the standard of “substantial,” however, is not a medical determination but is a question of fact for the jury.
State v. Blakeney,
Defendant’s second claim is that the trial court erred in admitting a recording of the 911 telephone call the victim placed during the incident. Defendant claims that the tape, which was played for the jury several times, was not properly authenticated, was not the best evidence, and contained inadmissible hearsay evidence. A trial court’s evidentiary rulings are left to its sound discretion, and we will not reverse absent an abuse of that discretion.
State v. Corliss,
A tape recording is authenticated for admissibility “by evidence sufficient to support a finding that the matter in question is what its proponent claims.” V.R.E. 901(a). In this case, the State could authenticate the recording by “[ijdentification of a voice,... by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.”
Id.
901(b)(5). “The identification and authentication of the tapes is an issue to be ruled upon by the trial court on the basis of relevance and reasonable certainty.”
State v. Mecier,
In reviewing the trial court’s decision, we note that the test for authenticating evidence is not a demanding one, and that some questions regarding a piece of evidence’s origin or chain of custody are permissible. “The test for a foundation for admissibility is not absolute certainty. It only requires that the evidence be of demonstrable relevance and of sufficient meaningful substance to be justifiably relied upon as a fact by the jury, rather than an insubstantial invitation to conjecture.”
Id.
at 152,
Defendant also objects to the admission of the tape on the grounds that there was no explanation offered as to why the original recording was not offered. In admitting the tape, the trial court did not determine whether the tape was the original or a duplicate. In this case, however, there is no need for the State to produce evidence that the tape played was the original, because whether it was the original or a duplicate is inconsequential in light of the fact that V.R.E. 1003 allows for the admission of duplicates. See
Mills v. Mills,
*109
Finally, defendant argues that the tape recordings, even if authentic, contain inadmissible hearsay evidence. The court ruled that the victim’s statements, which were being admitted for their content, fell clearly within the excited utterance exception to the hearsay rule. V.R.E. 803(2). That rule allows “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” to be admitted despite the hearsay rule.
Id.
Given that the 911 telephone call was made while defendant’s attack was ongoing, the court’s conclusion that these statements were excited utterances, and therefore trustworthy, is reasonable. See
In re Estate of Peters,
Defendant next argues that the court’s instructions to the jury on “serious bodily injury” and regarding the expert medical testimony were erroneous. Defendant asserts that the court erred when it included only two of the four disjunctive elements of “serious bodily injury.” Defendant also claims that the court’s instruction diminished the value of the medical expert testimony regarding the victim’s injuries, which undermined the defense’s theory of the case. As discussed above, 13 V.S.A. § 1021(2) defines “serious bodily injury” as one of four elements: “bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health, or substantial disfigurement” (emphasis added). The court instructed the jury on only two of these elements as follows: “serious bodily injury means any bodily injury which, in pertinent part, creates or causes at least one of the following two. One, a substantial impairment of health; or, two, substantial disfigurement.” Defendant claims that by failing to instruct on the other two elements, namely “substantial risk of death” or “substantial loss ... of the function of any bodily member or organ,” 13 V.S.A. § 1021(2), the court relieved the State of part of its burden of proof on elements of the crime.
We must review the jury instructions in their entirety to determine whether they sufficiently guided the jury without a prejudicial impact on deliberations.
Couture,
There was no error in the instructions. Section 1021(2)’s definition of “serious bodily injury” was written in the disjunctive, meaning that the State must prove only one of the elements to meet the definition, rather than all four.
State v. Carpenter,
Defendant also complains that the trial court’s instruction on the medical expert testimony undermined that testimony and encouraged the jurors to disregard it. The complained of instruction was as follows:
You should distinctly understand that whether or not an expert has given an opinion about whether an element of any charged offense or claim existed, it remains your responsibility to determine whether such an element has been proven in this case. For example, you should not simply substitute the medical opinion of a doctor as to whether Ms. Benson suffered an injury which created substantial impairment of health or substantial disfigurement for your own judgment based upon all the evidence and the legal definitions of such terms which I will give you. Rather, you should consider the opinions and conclusions of any expert as you would any witness in the case and reach your own determinations in accordance with the facts you find from all the evidence and the law as I am now instructing you.
Defendant contends that this instruction harmed his case, because his defense at trial hinged largely on the medical testimony, which did not characterize the victim’s injuries as “serious bodily injury.”
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The instruction was proper. The purpose of the instruction was to inform the jury that what is “serious bodily injury” is for the jury to decide, not anyone else. Although V.R.E. 704 allows an expert to testify as to the ultimate issue to be decided, that testimony is not entitled to any particular reverence. Rather it is the province of the jury to determine what weight to accord expert witness testimony.
Keus v. Brooks Drug, Inc.,
Defendant next claims that the trial court violated his privilege against self-incrimination by improperly considering his silence in the sentencing process as a basis to enhance his sentence. Upon advice of counsel, defendant remained silent at the interview conducted as part of the presentence investigation (PSI). Defendant asserts that the PSI was flawed because it contained impermissible inferences based on his silence, in that the investigator concluded that defendant showed no remorse for the crimes. After receiving the PSI, the trial court sentenced him to a term of two to six and one-half years in prison. Defendant argues the court erred by accepting the PSI, and by holding defendant’s silence at the sentencing itself against him.
The first flaw in defendant’s argument is his contention that the court’s refusal to grant him probation in lieu of jail time is a sentence enhancement. We do not accept this characterization. The trial court’s sentence was within the statutory guidelines for the crime for which he was convicted. See 13 V.S.A. § 1043(b) (first degree agravated domestic assault punishable by not more than fifteen years prison, or $25,000 or both). It is settled law that a trial court’s denial of a sentence reduction does not constitute sentence enhancement. In
State v. Sims,
Defendant’s claim that the trial court erred by considering his silence at the PSI and the sentencing hearing is also without merit. Defendant cites the United States Supreme Court’s decision in
Mitchell v. United States,
Indeed, it is entirely proper for a court to consider whether a defendant has accepted responsibility for the offense at sentencing without violating his privilege against self-incrimination. In
State v. Gorbea,
Moreover, defendant was not silent at his sentencing hearing. Instead, the transcripts reveal that defendant spoke to the court about his work habits, family life, personal generosity, and his past feelings toward the victim. Most notably, defendant specifically asserted to the court, “I am very sorry that somebody got hurt in the long run because I don’t want nobody to get hurt.” The trial court considered these statements and concluded that they did not sufficiently express remorse, and did not indicate that defendant had accepted the consequences of his own actions. See
Sims,
Defendant next claims that the trial court erred when it denied his request for access to the private residence that was the crime scene. Defendant filed a motion seeking a court order compelling the current occupants to allow him access to their home. At the time of the hearing on the motion, the victim no longer lived in the home where the crime occurred and the current occupants did not want defendant or defense counsel inspecting their home or their property. Defendant argues that because the victim previously allowed the State to inspect her home and to take photographs, the court should have ordered the current occupants to allow him similar access. We disagree.
*114 Under V.R.O.P. 16(a)(2) when the prosecutor has custody of or controls a crime scene he must permit the defense access. The rule, however, imposes no duty on the prosecutor who does riot have control of the crime scene. 1 Id. In this case, defendant does not dispute that the victim, her family, and the subsequent occupants of the house, respectively, had and maintained control of the crime scene — the prosecutor had neither the duty, nor the authority, to grant the defense access.
A defendant’s need for access to a crime scene controlled by a private third party must be balanced against the property occupant’s right to privacy. Courts have generally struck that balance by requiring a defendant to make some showing that the requested intrusion is relevant and material to the defense. See
Bullen v. Superior Court,
Indeed, it is not clear that even had defendant attempted to meet this prima facie burden, that he would have succeeded in identifying a sufficient reason for the inspection. The State provided copies of its crime scene photographs to the defense, the victim testified at trial, and there was overwhelming evidence of defendant’s guilt. On the record there is no indication how defense strategy would have changed had defense counsel seen the crime scene firsthand. See
Bullen,
Defendant takes issue with three aspects of the trial that he terms “experimental trial procedures.” First, defendant asserts that his jury was not selected randomly because jurors were selected from a list of all the jurors in the pool that day. Second, defendant claims that the court should not have allowed the jurors to take notes during the trial. Third, defendant claims that the court should not have given the jury preliminary instructions based on the crimes charged before the trial began.
Defendant’s arguments are unavailing. First, common sense demonstrates that, in fact, his jury draw was random. It is uncontested that the jury pool, that is the forty people selected for duty that day, was randomly selected from a list of potential jurors. The fact that those randomly selected people were then placed on a list, and that list was followed in order does not disrupt the “randomness” of the panel
*116
selected. One randomly created list is no more fair or impartial than any other. Defendant cites no case to support his contention that the list of randomly selected jurors must be reshuffled between each pool selection. Defendant’s right to challenge the jury pool is limited to “a right of rejection, not one of selection____Thus, defendant does not have a right to any specific juror; his right is to a fair and impartial jury.”
State v. Calloway,
Nor do we find that the “experimental” procedures of juror note-taking and preliminary instructions were improper. It is becoming increasingly common for judges to use new practices “to assist the jurors in their consideration of the evidence and the law, and in carrying out, with increased confidence and satisfaction, their role and responsibilities as the ultimate arbiters” of cases.
Jury Trial Innovations in Massachusetts,
xvii (Hon. P. Lauriat ed., 2000). Specifically, juror note-taking has become widespread, and in fact is specifically authorized by our civil rules. See, e.g., Ariz. R. Crim. P. 18.6(d); Ma. Super. Ct. R. 8A; V.R.C.P. 39(e). A similar rule allowing note-taking in criminal trials has been proposed in Vermont by our Committee on Jury Communications, Understanding and Deliberation. That the rule has not yet become official, however, does not indicate error. The trial court was within its discretion in permitting note-taking. See, e.g.,
Esaw v. Friedman,
The use of preliminary juror instructions was similarly acceptable. Preliminary instruction is useful to “help the jury identify, recall, and evaluate the pertinent evidence [and] enhanced juror’s ability to remember information presented at trial and to link the evidence to relevant issues.” Lauriat,
supra,
at 54. In any event, defendant has failed to demonstrate any prejudice resulting from the preliminary jury instructions. We disagree with defendant’s claim that the “experimental procedures” are “structural error” that do not require defendant to show prejudice. We have stated that “structural
*117
error” involves a “defect that affected the framework in which the trial proceeded, and thus, prevented the trial from serving its function as a vehicle for determining the guilt or innocence of the defendant.”
In re Hunt,
Defendant further asserts that the court unreasonably limited the scope of defendant’s cross-examination. Defendant identifies a few lines of questioning of the victim and another witness that the court did not permit. Specifically, defendant was not allowed to question the victim on the source of her medical insurance for an unrelated incident, he was limited in the extent to which he could question the victim on her prior relationship with defendant, and he was restricted in questions regarding a business relationship between defendant and another witness. Defendant argues that these limitations violated his constitutional right to confront witnesses against him. There was no error.
A defendant’s right to confrontation is not absolute, and is limited by the requirements that evidence must be relevant, V.R.E. 402, and more probative than prejudicial, V.R.E. 403.
State v. Findlay,
Finally, defendant contends that the State violated V.R.Cr.P. 26(c) when it introduced evidence of defendant’s prior bad acts without giving defendant notice. V.R.Cr.P. 26(c) provides that when the State “intends to offer evidence of other criminal offenses under Rule 404(b) *118 of the Vermont Rules of Evidence, ... at least seven days before the trial [the State] shall furnish to the [defendant] a written statement of the acts or offenses it intends to offer.” At trial, the State elicited from the victim several statements that defendant allegedly threatened to kill her or her dog, and the victim’s fear that, on the night of the incident, defendant would return to the house and burn it down. The State did not give notice that it would offer these statements in evidence. Defendant claims that these statements fall within V.R.Cr.P. 26(c), and thus he was entitled to notice before the State could use them.
Regardless of whether these statements fell within the coverage of Rule 26(c), defendant has failed to explain how he was harmed by the lack of notice. The contested statements were ancillary to the incident at issue, and not central to either the State’s prosecution or the defense’s theory of the case. The evidence of defendant’s guilt in this case was overwhelming, and thus whether or not defendant previously threatened her or her dog is not particularly probative of what happened on the night in question. We therefore find that any error was harmless. See
State v. Kinney,
Affirmed.
Notes
Defendant implies that the prosecution impeded defendant’s access to the crime scene when it explained to the court that the current occupants did not wish to grant defense counsel access to the property. There is no merit to this charge. At the hearing on defendant’s motion, defense counsel was unable to tell the court the identity of the current occupants. The state’s attorney was asked by the court to fill in the factual gaps that the defense did not have. There is no evidence that the state’s attorney contacted or advised the property owners to not allow defense counsel access. V.R.O.P. 16 was not violated.
Defendant’s reliance on
Killington, Ltd. v. Lash,