| People v Dunham |
| 2019 NY Slip Op 03409 [172 AD3d 1462] |
| May 2, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Todd W. Dunham, Appellant. |
Hug Law PLLC, Albany (Matthew C. Hug of counsel), for appellant.
Kristy L. Sprague, District Attorney, Elizabethtown (Michele A. Bowen of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered April 23, 2018, upon a verdict convicting defendant of the crimes of sexual abuse in thefirst degree, criminal sexual act in the first degree and rape in the first degree.
Defendant was charged in an indictment with sexual abuse in the first degree, criminal sexualact in the first degree and rape in the first degree arising from him engaging in sexual activitywith a victim who was allegedly unable to consent due to physical helplessness. Following a jurytrial, defendant was convicted as charged. County Court sentenced defendant to concurrentprison terms of 3
Defendant does not dispute that he had a sexual encounter with the victim. He does arguethat the victim was not "physically helpless" when the encounter occurred, and that the jury'sfinding to the contrary was unsupported by legally sufficient proof and against the weight of theevidence (Penal Law §§ 130.35 [2]; 130.50 [2]; 130.65 [2]). Physicalhelplessness is present when "a person is unconscious or for any other reason is physically unableto communicate unwillingness to an act" (Penal Law § 130.00 [7]; see People v Battease, 74 AD3d1571, 1573 [2010], lv denied 15 NY3d 849 [2010]). Of note, "a person who issleeping is 'physically helpless' for the purposes of consenting to sexual intercourse, particularlywhere the sleep was drug and alcohol induced" (People v Williams, 40 AD3d 1364, 1366 [2007], lv denied9 NY3d 927 [2007]).
The victim here was visiting New York for a wedding and was staying at the home ofdefendant and his romantic partner, Marla Jones. The victim testified to having several drinksbefore the wedding and, after a brief ceremony, several more at the reception. She realized thatshe was drunk when she called her husband towards the end of the reception, and her husbandtestified that the victim sounded drunk during that conversation. A whiskey shot as she preparedto leave "really put [her] over the edge." She became nauseous and woozy during the ride back todefendant and Jones' residence, and laid down in the backseat of the car. Upon arriving, thevictim went to the bathroom and knelt over the toilet to vomit. Her recollection was "very spotty"from this point forward, but she recalled defendant reaching under her sweater while she wasbraced against the toilet and groping her breasts from behind. She next remembers waking up inbed to find defendant wetting his fingers in his mouth, inserting them into her vagina, thensubjecting her to anal and vaginal sex. She testified that she had no control over her body andwas unable to react, which was consistent with the testimony of a physician who explained howan individual in an alcoholic stupor could be awakened by painful or frightening stimuli butwould remain confused and without motor control. Defendant left the room when he wasfinished, and the following morning the victim left the residence with Jones after disclosing whatshe described as a nonconsensual encounter. In the electronic messages exchanged betweenJones, the victim and defendant that day, defendant acknowledged that he had "lost control" andtaken advantage of the victim, that he eventually realized that she was "either sleeping or just notinterested," and failed to deny her flat accusation that he had raped her.
The foregoing proof reflected that the victim was insensible and unable to consent whendefendant initiated the sexual encounter (see People v Wicks, 73 AD3d 1233, 1234 [2010], lv denied15 NY3d 857 [2010]; People vBush, 57 AD3d 1119, 1119-1120 [2008], lv denied 12 NY3d 756 [2009]), thenphysically unable to express her unwillingness to proceed (compare People v Teicher, 52NY2d 638, 646 [1981], with People vCecunjanin, 16 NY3d 488, 492-493 [2011]). It follows that, when viewed in the lightmost favorable to the People, there was legally sufficient evidence that the victim was physicallyhelpless and unable to consent to any of the charged conduct (see Penal Law§ 130.00 [7]; see People vWilson, 164 AD3d 1012, 1013-1014 [2018]; People v Sene, 66 AD3d 427, 427-428 [2009], lv denied 13NY3d 941 [2010]; People v Fuller,50 AD3d 1171, 1174 [2008], lv denied 11 NY3d 788 [2008]).
The victim's account was open to question, with testimony from defendant, Jones and theirfriends that she did not appear to be intoxicated at the wedding reception and had been flirtingwith defendant throughout the day and evening. It was undisputed that the victim had imbibed,however, and defendant admitted that he had groped the victim while she was slumped over thetoilet to vomit. Defendant's further testimony that he had a sexual encounter with a conscious,willing victim was undercut by the statements of both he and the victim the next day and, in anyevent, "presented 'a classic he-said she-said credibility determination' for the jury to resolve" (People v Kiah, 156 AD3d 1054,1056 [2017], lv denied 31 NY3d 984 [2018], quoting People v McCray, 102 AD3d 1000, 1000 [2013], affd 23NY3d 193 [2014]). "The state of the victim's physical helplessness at any given moment islargely a question of fact" and, after listening to defendant and the victim on that issue, the jurycredited the proof that the victim was physically helpless at all relevant times (People vTeicher, 52 NY2d at 649; seePeople v Bjork, 105 AD3d 1258, 1261 [2013], lv denied 21 NY3d 1040 [2013],cert denied 571 US 1213 [2014]). Accordingly, "although a different verdict would nothave been unreasonable, we accord deference to the jury's determination that the victim'stestimony was more credible than that of defendant and conclude that the weight of the evidencesupports the verdict" (People v Kiah, 156 AD3d at 1056; see People v Tucker, 149 AD3d1261, 1262-1263 [2017], lv denied 29 NY3d 1087 [2017]; People v Thomas, 21 AD3d 643,645 [2005], lv denied 6 NY3d 759 [2005]).
Turning to defendant's evidentiary arguments, County Court properly allowed testimonyregarding statements that the victim made about the sexual encounter to her husband and a sexualassault nurse examiner. The testimony of the victim's husband as to what she told him about theincident when he picked her up at the airport served the nonhearsay purpose of explaining whyhe urged her to call the police, and County Court gave an appropriate limiting instruction to thejury (see People v Carney, 110AD3d 1244, 1245 [2013]; cf.People v Ludwig, 24 NY3d 221, 231-232 [2014]; People v Coker, 121 AD3d 1305, 1306 [2014], lv denied 26NY3d 927 [2015]). The sexual assault nurse examiner was also free to relate the victim'sstatements about the sexual encounter, as they were "germane to [the nurse's] diagnosis andtreatment," and an appropriate limiting instruction was given (People v Spicola, 16 NY3d 441, 451-452 [2011]; see People v Hackett, 167 AD3d1090, 1094 [2018]).
As for Jones' testimony during the People's case-in-chief, "County Court properly exercisedits discretion in permitting the prosecutor to ask leading questions of the prosecution's ownwitness . . . inasmuch as" Jones was defendant's long-term romantic partner, hertestimony differed from what she had previously told the prosecutor about the incident andCounty Court noted her recalcitrant demeanor on the stand (People v Jacobs, 298 AD2d954, 955 [2002], lv denied 99 NY2d 559 [2002]; see People v Sexton, 187 NY495, 509 [1907]; People v Dann, 14AD3d 795, 797 [2005], lv denied 4 NY3d 885 [2005]). Defendant also contends thatthe People improperly elicited testimony from the victim regarding her morning-after disclosureof the sexual encounter with defendant to Jones. Jones had already testified about theconversation without objection, however, Jones' account was less detailed but not radicallydifferent from that of the victim, and the conversation explained the actions of the two womenand defendant as the day unfolded. There was, as a result, nothing inappropriate in allowing thevictim to provide her version of it (see e.g. People v Ludwig, 24 NY3d at 231; People v Gregory, 78 AD3d 1246,1246-1247 [2010], lv denied 16 NY3d 831 [2011]).
Next, defendant complains of the expert testimony of the physician, Eike Blohm, regardingthe effects of intoxication. The People alleged that the victim's intoxication contributed to herphysical helplessness at the time of the sexual encounter with defendant. Blohm specificallyexplained the phases of intoxication, including the stupor phase of intoxication, and thephysiological effects associated with each phase. County Court had every "reason to suppose thatsuch testimony [would] elucidate some material aspect of the case that would otherwise resistcomprehension by jurors of ordinary training and intelligence," and did not abuse its discretion inplacing the testimony before them (People v Inoa, 25 NY3d 466, 472 [2015]; see People vWilson, 136 AD2d 800, 800-801 [1988], lv denied 71 NY2d 974 [1988]).
Contrary to defendant's further contention, the jury was properly charged as to the definitionof "physically helpless." County Court administered a charge on that issue that closely trackedthe Criminal Jury Instructions, but added language that "[a] person who is sleeping is physicallyhelpless for the purposes of consenting to sexual contact, particularly where the sleep was drugand alcohol induced." This charge, when viewed as a whole, "conveyed that it was for the jury todecide whether the victim's state of being asleep constituted physical helplessness" as required(People v Sene, 66 AD3d at 428).
Defendant also contends that he did not receive the effective assistance of counsel becausehis trial counsel did not raise the affirmative defense that defendant was unaware of the facts orconditions responsible for the victim's incapacity (see Penal Law § 130.10[1]). His theory of the case, however, was that the victim had not had much to drink, was notincapacitated and was a willing and active participant in the sexual encounter. The affirmativedefense would demand proof of the victim's intoxication that would have undercut defendant'sown testimony regarding her conduct earlier in the day. It is incumbent upon defendant to"demonstrate[ ] the absence of strategic or other legitimate explanations for counsel's allegedlydeficient conduct" (People v Duffy,119 AD3d 1231, 1234 [2014] [internal quotation marks and citations omitted], lvdenied 24 NY3d 1043 [2014]; seePeople v McRobbie, 97 AD3d 970, 972 [2012], lv denied 20 NY3d 934 [2012]),and it was sensible to avoid presenting an inconsistent defense that would "create[ ] a risk ofjuror confusion and 'may well [have] taint[ed] . . . defendant's credibility in the eyesof the jury' " (People v Bradley, 88 NY2d 901, 903 [1996], quoting People vDeGina, 72 NY2d 768, 777 [1988]). His remaining claim of ineffective assistance involvesmatters outside the record that is better explored in the context of a CPL article 440 motion (see People v Dickerson, 168 AD3d1194, 1195 [2019]; People vRetell, 164 AD3d 1501, 1502 [2018]).
Finally, County Court lawfully directed that the sentence for the conviction of rape in thefirst degree run consecutively to the others imposed because the convictions arose from "separateand distinct acts, notwithstanding that they occurred in the course of a continuous incident" (People v Soto, 155 AD3d 1066,1067 [2017] [internal quotation marks and citation omitted], lv denied 30 NY3d 1120[2018]; see People v Pena, 126AD3d 618, 619 [2015], affd 28 NY3d 727 [2017]; People v Rosado, 56 AD3d 1215,1216 [2008]). In view of the conduct for which defendant was convicted and his failure to acceptresponsibility for it, "we find no abuse of discretion or extraordinary circumstances warranting amodification" of the sentence (People vShepherd, 83 AD3d 1298, 1302 [2011], lv denied 17 NY3d 809 [2011]; see People v Bartolillo, 47 AD3d1122, 1122 [2008]).
Egan Jr., J.P., Aarons and Rumsey, JJ., concur. Ordered that the judgment is affirmed, andmatter remitted to the County Court of Essex County for further proceedings pursuant to CPL460.50 (5).