State v. Rooney

State v. Rooney (2000-437); 173 Vt. 506; 788 A.2d 490

[Filed 07-Nov-2001]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-437

                             OCTOBER TERM, 2001

	
State of Vermont	               }      APPEALED FROM:
                                       }
                                       }
     v.	                               }      District Court of Vermont,
                                       }      Unit No. 2, Chittenden Circuit
Ronald B. Rooney	               }
                                       }      DOCKET NO. 1048-2-99 Cncr

                                              Trial Judge: Michael S. Kupersmith

             In the above-entitled cause, the Clerk will enter:


       Defendant Ronald Rooney appeals from an order of the district court
  denying his motion to  dismiss a charge of inciting another to aid in the
  commission of a felony.  Defendant argues that even  if all the facts
  alleged by the State are true, such allegations do not amount to a crime. 
  Despite  defendant's attempt to characterize his motion as a challenge to
  the sufficiency of the evidence  pursuant to V.R.Cr.P. 12(d), the motion is
  more akin to a challenge of the initial determination of  probable cause
  set forth in V.R.Cr.P. 4(b) and 5(c).  Accepting the facts alleged by the
  State as true,  we conclude that the actions defendant solicited from his
  would-be accomplice would have been a  felony had they been completed. 
  Accordingly, we affirm.

       Based on the affidavit of probable cause, the facts are as follows. 
  Defendant offered his niece,  T.S., $100 in return for her allowing him to
  have sex with her eight year old daughter.  Defendant  told T.S. that her
  daughter would have to bathe and be clean beforehand.  T.S. told the
  defendant no,  because her daughter was too small and defendant was too
  old.  She then reported defendant's offer  to the Chittenden Unit for
  Special Investigations.  Defendant was charged with a violation of 13 
  V.S.A. § 7, which punishes "[a] person who endeavors to incite, procure, or
  hire another person to  commit a felony, though a felony is not actually
  committed as a result of such inciting, hiring, or  procuring."  The felony
  referenced in this charge was aggravated sexual assault in violation of 13 
  V.S.A. § 3253(a)(8). (FN1)

       Defendant brought a motion to dismiss pursuant to V.R.Cr.P. 12(d). 
  The court denied the  motion holding that "[t]he crime was committed if, as
  alleged, the defendant endeavored to have T.S.  aid him in the commission
  of a sexual assault by making her child available to him."  The case 
  proceeded to a jury trial and defendant was convicted.  Defendant now
  appeals from the court's 

 

  denial of his motion to dismiss.  On appeal, he raises three related
  arguments.  First, he claims that  the court did not properly address his
  motion pursuant to Rule 12(d); next, he contends that even if  the court
  did address his 12(d) argument, the court relied on inadmissible evidence;
  finally,  defendant raises the substantive argument that the State could
  not make out a prima facie case for the  offense charged.

       Defendant's argument as described in his appeal brief is that "even if
  the State proved  everything it alleged in the Information, the proved
  facts would still not amount to the offense stated  in the Information." 
  Rule 12(d), however, is the motion appropriate when "the prosecution is
  unable  to make out a prima facie case . . . .  The motion shall specify
  the factual elements of the offense  which the defendant contends cannot be
  proven at trial."  Both in his motion to the district court and  again on
  appeal, defendant does not claim that there are facts that the State cannot
  prove in order to  satisfy the elements of the crime.  Rather, defendant
  argues that even accepting as true all the facts  alleged, those facts are
  not a crime.  Defendant is thus incorrect when he argues that the trial
  court  failed to address his Rule 12(d) motion properly, because he
  submitted a Rule 12(d) motion in name  only.  In reality, his motion raised
  the issue addressed in a Rule 4(b) or 5(c) proceeding to determine 
  probable cause.  Rule 4(b) states that no information shall issue unless
  "there is probable cause to  believe that an offense has been committed and
  that the defendant has committed it.  The finding of  probable cause shall
  be based upon substantial evidence, which may be hearsay in whole or in
  part."   The trial court addressed precisely what the defendant asked of
  the court - to determine whether,  given the facts as alleged, an offense
  had been committed.  Thus, the court did not misperceive the  nature of
  defendant's motion to dismiss in disposing of the motion in the manner the
  court did.

       There is no merit, therefore, to defendant's claim that the court
  relied on inadmissible hearsay  evidence in denying the motion to dismiss. 
  Defendant correctly highlights that in response to a Rule  12(d) motion to
  dismiss by a defendant, the prosecution must counter with "admissible
  evidence."   V.R.Cr.P. 12(d)(2).  In denying defendant's motion in this
  case, the court relied on the affidavit of the  investigating police
  officer, which defendant claims contained inadmissible hearsay evidence.  
  Assuming for the moment that statements in the affidavit are inadmissible
  hearsay, there was no  error, because, as discussed above, defendant's
  motion was not a Rule 12(d) motion.  Instead, the  motion should be treated
  according to the rules set forth for a finding of probable cause.  Rule 4 
  makes clear that a determination of probable cause may be based on evidence
  that is "hearsay in  whole or in part."  V.R.Cr.P. 4(b).  Therefore, in
  analyzing defendant's motion to dismiss, the court  was free to look to
  hearsay evidence in the investigating police officer's affidavit.

       We turn to the merits of defendant's contention that the alleged
  facts, if proven, are not a  crime.  The information alleged that defendant
  "endeavored to incite another to aid in the  commission of a felony, to
  wit: inciting T.S. to allow Ronald Rooney to have sexual intercourse with 
  her child, J.S. in violation of 13 V.S.A. § 3; § 7; and § 3253(a)(8)."  In
  other words, defendant  solicited T.S. to commit the felony (prohibited by
  13 V.S.A. § 7) of being an accomplice (prohibited  by § 3) to defendant's
  aggravated sexual assault (prohibited by § 3253(a)(8)).  Accomplice
  liability  arises "when several persons combine under a common
  understanding, and with a common purpose,  to do an illegal act."  State v.
  Hudson, 163 Vt. 316, 319, 658 A.2d 531, 533 (1995).  See also State v. 
  Carter, 138 Vt. 264, 268, 415 A.2d 185, 187 (1980) (accomplice liability
  requires that defendant  "knowingly and intentionally participated to some
  substantial measure in . . . a common criminal  objective" (internal
  quotations omitted)).

 

       Defendant argues that even if T.S. did everything that defendant asked
  of her, this would not  give rise to accomplice liability; therefore,
  defendant could not have incited her to commit a felony.   He focuses
  principally on the claim that T.S. did not have the requisite intent nor
  did she participate  to a sufficient degree to make her an accomplice to
  the proposed aggravated sexual assault.  As the  trial court stated,
  defendant relies on a "hyper-technical" argument, which bears no relation
  to the  facts of this case.  He contends that T.S.'s proposed role was too
  passive for her to be considered an  accomplice - the information states
  that defendant requested that T.S. "allow" her daughter to be  sexually
  assaulted.  We disagree with defendant that giving permission for an
  eight-year old to be  sexually assaulted is not enough of an act to create
  criminal accomplice liability.

       It is elementary that parents have a duty to protect their children
  from abuse. See, e.g., In re  J.J.P., 168 Vt. 143, 148, 719 A.2d 394, 397
  (1998) (parental rights terminated based in part on  evidence of mother's
  inability to protect children from harm and neglect).  A parent's failure
  to act  can violate this duty.  See State v. Valley, 153 Vt. 380, 390, 571 A.2d 579, 584 (1989) (parents can  be guilty of manslaughter for failure to
  obtain medical care for child).  We are dealing in this case  with an eight
  year old girl.  For T.S. to "allow" defendant to sexually assault her
  daughter would  gravely neglect  her duty to protect her child from harm. 
  Moreover, from the affidavit of probable  cause it appears that defendant
  was asking more of T.S. than simply standing by - in fact he asked  her to
  bathe and clean her daughter before presenting J.S. to him so that he could
  complete the felony  of sexual assault.   Under any version of these facts,
  there can be no dispute that had T.S. fulfilled  defendant's request she
  would have participated substantially in defendant's sexual assault. 
  Likewise,  there is no merit to the argument that T.S. did not have the
  requisite intent for accomplice liability  because defendant made it
  explicitly clear to T.S. what he sought to do with J.S.  Thus had she 
  handed her child over to defendant, she would have intended that her
  daughter be sexually assaulted  by defendant.

       Affirmed.


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN1.  Defendant was also charged with attempted aggravated sexual assault
  based on the same  facts.  This count was dismissed by the district court
  in response to defendant's motion on the  grounds that defendant had not
  proceeded beyond preparation for the intended acts and those steps  were
  not enough to be an attempt.  That charge is not part of this appeal.