Thursday January 31, 2013

KEITH WHITCOMB JR.

Staff Writer

BENNINGTON -- A 78-year-old man was convicted Wednesday of sexually assaulting a developmentally disabled woman in 2007.

After about four hours of deliberation a jury returned guilty verdicts convicting Warren Breed, formerly of Bennington, of sexual assault -- no consent, and sexually exploiting a vulnerable adult. Breed was released from Bennington Superior Court Criminal Division on the condition that he abide by a 3 p.m. to 10 a.m. curfew at a home in Derry, N.H., where he has been residing while the case was pending.

Breed pleaded not guilty to the charges in February of last year. According to a Bennington Police affidavit, the incident was initially reported to them in 2007 but the complaining witness never followed through. She ultimately spoke further with police after neighbors learned of the incident and questioned her about it. Deputy State’s Attorney Christina Rainville said it was unclear, however, what exactly prompted the woman to resume speaking with police.

Police said that according to the woman, on a day in June 2007, Breed came to her apartment saying he needed help with something at his place. The two at that time resided in the same apartment complex in Bennington. She told police that Breed led her into his bedroom, where a pornographic film was playing on a television set, and he asked her if she wanted to do what was being depicted in the movie, to which she said no.

She told police that despite her refusal, Breed kissed her and removed her clothes. The woman said Breed also used a penis pump on himself. After the incident, she told police that Breed put $10 in her pocket prior to her leaving his apartment. This was in the initial report, and according to police, she told the same story a second time, adding that she had been too scared to physically resist Breed and no words were exchanged between them.

Police said Breed told them he laid on his bed with the woman, and that she took some of her own clothes off. He said intercourse was attempted, but never achieved.

Rainville said in her closing arguments to the jury that each person’s credibility must be taken into account, and she said the woman had established her truthfulness through corroborating evidence. Rainville said she knew about the pornography and the penis pump, which if Breed were to be believed she would not have. She said Breed also lied several times about the movies and the pump.

"He told more lies than we can count," Rainville said. "Who lies to police? The evidence suggests someone who is guilty."

Rainville said the woman’s actions after the incident were corroborated by Breed himself when she described having some difficulty leaving his apartment. "She was so distraught after that even she couldn’t find her way out of the apartment," Rainville said, adding that when a person lies their lies tend to get larger and more complex, however the woman’s statements were largely the same -- even over the span of five years.

Attorney Jeff Rubin, who represents Breed, said in his closing arguments that lies do indeed get larger and, in this case, the woman did change her story in order minimize her role in what he said was a consensual, if awkward, sexual act.

Rubin said that consent for sex, according to Vermont law, can be given through words or actions. He said while few words were exchanged in the incident, evidence suggests that the woman would have had to have at least assisted in the removal of her clothes.

"Love may be a matter of chemistry, but sex is a matter of physics. It can’t be accomplished by a man and a woman without some difficulty..." said Rubin.

He said when shown a picture of Breed’s living room as she took the witness stand, the woman identified it right away but according to her Breed had rushed her through it to his bedroom. He said she also changed her story from saying he gave her $10 to he put it in her pocket, further minimizing her role in the act.

Rubin said the woman’s behavior suggests someone who regretted an action she participated in willingly, not someone traumatized from having something forced on them.

Rubin said his client told "fibs" to police about the videos and pump because when he talked to Bennington Police Detective Anthony Silvestro, he had known him for all of a few minutes. "It was embarrassing to talk about what happened," said Rubin.

He said embarrassment perhaps played a role in the woman’s actions as well.

The trial began on Tuesday and was scheduled for a single day, but it ran into Wednesday morning. Jurors had the case shortly before noon and were instructed by Judge Cortland Corsones on the elements of the charges Breed faced.

Both Rainville and Rubin brought up the definition of vulnerable adult in their closing arguments. Rainville said the woman needs enough assistance in her daily life to be considered one, but Rubin said that while she does need some oversight, he said the jury could consider her perhaps not a vulnerable adult as defined by the criminal statute.

Rainville said in an interview she was grateful to the jury as well as the victim for their focus on the case and said it is important for the state to prosecute those who abuse the mentally disabled. She said she argued for Breed to be held without bail owing to the felony convictions for sexual assault which carry life maximums and at least three year minimum sentences.

Rubin did not return calls seeking comment.

Contact Keith Whitcomb Jr. at kwhitcomb@benningtonbanner.com. Follow him on Twitter @keithwhitcombjr