State v. Searles

 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, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
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                                 No. 91-038

 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 3, Washington Circuit

 Eric R. Searles                              December Term, 1992


 Joseph J. Wolchik, J.

 Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant Attorney
   General, Montpelier, for plaintiff-appellee

 Charles Martin and Helene Quinn, Law Clerk (On the Brief), of Martin &
   Paolini and Phyllis Boltax, Barre, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      MORSE, J.   Defendant Eric Searles, following a jury trial, appeals his
 conviction under 13 V.S.A. { 3252(a)(3) for sexual assault of a fourteen-
 year-old female.  Defendant contests his conviction on three grounds.  He
 claims the court erred by (1) refusing to instruct the jury that knowledge
 of the victim's age was an element of the offense, or, if not an element,
 that a reasonable mistake about the victim's age was a defense to the
 crime; (2) admitting evidence of the use of force when force was not an
 element of the crime; and (3) denying a mistrial when media coverage of the
 trial was read by some jurors.  We affirm.
      In the evening of August 6, 1989, defendant, accompanied by two male
 friends, stopped in Barre and met the complainant, a female ten days shy of
 her fifteenth birthday.  Although she knew none of the three, complainant
 joined them and indicated, when asked, the whereabouts of a party.  Beer was
 purchased, and, unable to find the party, the group drove around making
 several stops.  Eventually, defendant drove to Marshfield Dam with one of
 his friends and complainant.  There, the men forced her to have sexual
 intercourse with them.  She was then driven to the home of her friends in
 Randolph.  During the ride, she wrote the car's license number on her arm
 with a pen found on the dashboard.  The next morning, complainant reported
 the incident to the police.
                                     I.
      13 V.S.A. { 3252(a)(3) defines sexual assault of a minor as "a sexual
 act with another person and . . . [t]he other person is under the age of 16,
 except where the persons are married to each other and the sexual act is
 consensual."  Defendant argues that knowledge that the "other person is
 under the age of 16" is an element of the offense.
      Although defendant captions his first argument with a heading that
 states that his "constitutional right to due process" was violated by
 failure of the jury to consider the reasonableness of his knowledge of the
 victim's age, he does not brief either federal or state constitutional law.
 Rather, defendant analogizes the knowledge requirement for this offense to
 cases where we implied a mental element even though the statute was silent.
 See State v. Day, 150 Vt. 119, 122, 549 A.2d 1061, 1064 (1988) (operating a
 motor vehicle without owner's consent -- knowledge of lack of consent);
 State v. Audette, 149 Vt. 218, 222, 543 A.2d 1315, 1317 (1988) (kidnapping
 -- knowledge of restraint); State v. Hanson, 141 Vt. 228, 232, 446 A.2d 372,
 374 (1982) (larceny -- intent to permanently deprive owner of property);
 State v. Graves, 140 Vt. 202, 205, 436 A.2d 755, 757 (1981) (uttering a
 false prescription -- knowledge of falsity); State v. Sidway, 139 Vt. 480,
 484, 431 A.2d 1237, 1239 (1981) ("hit and run" -- knowledge of the
 accident).
      Statutory rape, the common-law crime of having sexual intercourse with
 a female under a certain age, has traditionally been considered a strict
 liability offense, where "mistake as to the age of an underage participant
 has been accorded no defensive significance."  Model Penal Code, { 213.6
 comment 2 (1980).  Vermont has neither statutorily deviated from the tradi-
 tional rule, nor done so by judicial decision.  See State v. Messier, 145
 Vt. 622, 627-28, 497 A.2d 740, 743 (1985) (defining crimes is generally a
 task for the legislature).
      Silence about a mental element in the statutory definition of a crime
 requires this Court to determine whether the Legislature nevertheless
 intended to include one.  State v. Roy, 151 Vt. 17, 25, 557 A.2d 884, 889
 (1989); Audette, 149 Vt. at 221, 543 A.2d  at 1316-17.  This Court will not
 imply a mental requirement, however, "when the statutory language cuts
 against such a result and the policy behind the statute would be defeated."
 Roy, 151 Vt. at 25, 557 A.2d  at 889.  We have previously stated the criteria
 used to decide whether a statute was intended to impose strict liability.
 As we stated in Roy:
           In addition to the statutory language, the factors we
         must look to in order to decide whether the Legislature
         intended to impose liability on a strict liability basis
         are: The severity of the punishment; the seriousness of
         the harm to the public; the defendant's opportunity to
         ascertain the true facts; the difficulty of prosecution
         if intent is required; and the number of prosecutions
         expected.

 Id., 557 A.2d  at 889-90.
      While the severity of punishment for sexual assault weighs against
 strict liability, the other factors predominate in favor of concluding that
 knowledge of the victim being under age is not a necessary element.  Vermont
 law reflects our enhanced concern for the protection and well-being of
 minors and the gravity we attach to crimes involving the exploitation of
 minors.  See, e.g., 13 V.S.A. { 1304 (cruelty to children under ten by one
 over sixteen); 33 V.S.A {{ 4911-4920 (reporting abuse of children); 13
 V.S.A. { 2804b (displaying obscene materials to minors); 13 V.S.A. {{ 2821-
 2826 (sexual exploitation of children).  Moreover, review of the legislative
 history of the statute convinces us that a requirement of knowledge that the
 victim is under age should not be implied.
      Before becoming law, 13 V.S.A. { 3252(a)(3) contained language
 requiring actual or constructive knowledge of age ("[k]nows or has reason to
 know that the other person is under the age of 16").  House Journal, 1977,
 at 545-546.  This language was deleted in a committee of conference.  The
 Legislature, on the other hand, retained knowledge as an element when
 "deadly force" is used in aggravated sexual assault.  13 V.S.A. {
 3253(a)(7).  "Deadly force" is defined as "physical force which a person
 uses with the intent of causing, or which the person knows or should have
 known would create a substantial risk of causing, death or serious bodily
 injury."  Id. { 3251(7) (emphasis added).  The Legislature could have
 included similar language pertaining to knowledge of the minor's age in {
 3252(a)(3), but declined to do so.  See State v. Racine, 133 Vt. 111, 114,
 329 A.2d 651, 653-54 (1974) (presumption that all language is inserted in
 statute advisedly).
      Alternatively, defendant contends that a reasonable mistake about the
 victim's age should be implied as a defense.  In contrast to the legislative
 scheme for sexual assault, the statutory framework dealing with sexual
 exploitation of children explicitly allows an affirmative defense to using
 a child in a sexual performance that the "defendant, in good faith, had a
 reasonable and factual basis to conclude that the child had in fact attained
 the age of 16."  13 V.S.A. { 2822(b).  Again, we presume that like language
 would have been included in { 3252(a)(3) had the Legislature intended the
 defense to be available.
      We decline to imply knowledge of age as an element of, or reasonable
 mistake of age as a defense to, sexual assault of a minor.
                                     II.
      Because the element of force is absent from sexual assault of a minor
 and the crime is established even though the minor consents to sexual
 relations, defendant claims it was error to admit evidence that defendant
 forced the victim to have sex.  Before trial, defendant moved that the
 evidence of force be excluded as irrelevant under V.R.E. 401 and, if
 relevant, because "its probative value . . . [was] substantially outweighed
 by the danger of unfair prejudice."  V.R.E. 403.
      We cannot conclude that the admission of the evidence of force was
 error.  It was relevant evidence.  See State v. Thompson, 150 Vt. 640, 646,
 556 A.2d 95, 99 (1989) (use of force relevant at trial in prosecution for
 sexual assault of a minor).  Nor did error occur under V.R.E. 403.  See
 State v. Derouchie, 153 Vt. 29, 34-35, 568 A.2d 416, 418 (1989) (quoting
 State v. Parker, 149 Vt. 393, 401, 545 A.2d 512, 517 (1988)) (burden to show
 abuse of discretion under Rule 403 "a heavy one and often difficult to
 satisfy").  As the trial judge so aptly said:
           [The jury] has got to get a basic picture of what
         happened if it's going to make a decision as to what
         happened. The jury confusion has to be avoided.  In
         order to avoid jury confusion, they have to have some
         idea of the flow of events from A to Z. . . .  [Other-
         wise], the confusion like that can create reasonable
         doubt without any sound basis.
 Absent the evidence, the sexual episodes would have appeared incomplete.
 The resulting gaps in the narrative would detract from its "ring of truth."
 Simply put, the way the sexual activity happened was relevant to the
 credibility of the happening.  Expurgating the testimonial story would be
 like tearing it apart and leaving it "not out of whole cloth."  No abuse of
 discretion was shown.
                            III.
      During the trial, with the jury unsequestered, the following newspaper
 account appeared:
         A twenty-eight year old New Hampshire man charged with
         forcibly raping a fourteen year old girl in August, 1989
         is scheduled to go to trial in Vermont District Court in
         Barre today.  Eric Searles is one of the two men
         arrested by Vermont State Police in connection with the
         assault.

         A co-defendant, Brad Tullgren, pleaded guilty to a
         sexual assault charge earlier this year, and agreed to
         act as a witness for the prosecution in Searles' trial.
         Tullgren was sentenced to one to three years in prison,
         with all but four months suspended.  Searles has been
         free on his own recognizance since his arraignment in
         October.

         Washington County Deputy State's Attorney A. Phillips
         Keller said Wednesday that Judge Joseph J. Wolchik
         indicated at a pretrial conference that Searles may be
         sentenced to a one to five year prison sentence if he is
         convicted or pleads guilty to the charge.

 Defendant moved for a mistrial arguing that the jury would be unduly
 influenced by the reference to defendant "forcibly raping a fourteen year
 old girl" and the "one to five year prison sentence."  The jury was
 questioned, and those jurors who indicated having any knowledge of the
 article were questioned further out of the presence of other jurors.
 Although a few jurors had some knowledge of the news account, no juror
 indicated, when asked, that the knowledge would influence the juror's
 judgment adversely to defendant.  The motion for a mistrial, as well as a
 later motion for a new trial, was denied.
      Exposure of jurors to news accounts, without more, is insufficient
 reason to cause a new trial.  Bias or prejudice must be shown, and the
 court has discretion in evaluating the impact upon the jury.  See State v.
 Wheel, 155 Vt. 587, 599-602, 587 A.2d 933, 940-42 (1990) (defendant must
 show more than prior knowledge of case; must show jurors had "fixed bias" or
 "harbored prejudicial preconceived notions" about case).  Here, absent such
 showing by defendant, we find no abuse of discretion.
                                         Affirmed.

                                         FOR THE COURT:




                                         Associate Justice