PLATTSBURGH -- A state appeals court reduced one count in the rape conviction of a former Keeseville man.

Eric Fuller, 43, was convicted in Essex County Court in May 2003 of first-degree rape, third-degree rape, two counts of first-degree sexual abuse, three counts of unlawfully dealing with a child and four counts of endangering the welfare of a child.

TEEN GIRLS

According to the ruling by the Appellate Division of the State Supreme Court, on the evening of May 18, 2002, Fuller purchased alcohol for his teenage daughter and three of her friends. He left the home and returned about 1 a.m., by which time all the girls were feeling intoxicated.

Fuller socialized with two of the friends, ages 15 and 16.

In the case of the 15-year-old, Fuller lay on top of her on the couch, and she pushed him off. He grabbed her vagina and then her buttocks.

In the basement, the 16-year-old had passed out on some cushions. When she woke up, Fuller was molesting her. She said she could not say or do anything during the attack because she was not fully conscious and then passed out again. When she awoke again, she testified, her pants were around her ankles and there was evidence of sexual contact.

At the trial, Fuller denied having contact with the 16-year-old but admitted kissing her and ejaculating on her pajamas.

He also denied touching the 15-year-old, saying he may have had contact with her when he stumbled over a table and caught himself.

He was convicted as charged and sentenced to 27 to 32 years in prison, of which seven years was for first-degree sexual abuse of the 15-year-old.

APPEAL ARGUMENTS

In his appeal, he challenged his convictions for rape and first-degree sexual abuse in the case of the 16-year-old, saying the evidence was not sufficient.

The appeals court said rape can be established by medical and forensic evidence when the victim is unable to testify to the penetration.

The appeals court pointed to testimony from a forensic scientist that a vaginal swab taken from the victim less than 72 hours after the attack showed the presence of her DNA and Fuller's DNA, as did a stain cutting from her pajamas.

This could lead the jury to believe there was penetration, the justices said.

The court also said there was enough evidence to believe the victim was incapacitated by alcohol at the time of the attack.

The appeals court said it was satisfied that the verdicts of rape and sexual abuse were not against the weight of the evidence.

COUNT OVERRULED

As to the 15-year-old, there was sufficient evidence to support the conviction of forcible touching for his sexual gratification, the appeals court said.

However, the justices disagreed with the conviction for first-degree sexual abuse. They said there was no testimony that indicated the girl was in fear of physical force being used nor were threats made. That is an element of first-degree sexual abuse.

Therefore, the court reduced that count from first degree to third degree and ordered that Fuller be resentenced on that count only.

RESENTENCE

They also rejected an argument that Fuller was prejudiced by the allowance of evidence of prior bad acts and uncharged crimes of a sexual nature. That testimony was properly admitted to show Fuller was likely to engage in conduct that was a danger to the welfare of a child, the justices said.

The appeals court also rejected arguments that Fuller received ineffective assistance from his attorney and that the judge, Andrew Halloran, should have recused himself.

Fuller will be sent back to Essex County Court for resentencing on the one reduced count.

According to Department of Corrections records, Fuller is serving his time at Elmira Correctional Facility. His earliest release date is July 2030.

botsford@westelcom.com

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