State v. Squiers

State v. Squiers (2004-499); 179 Vt. 388; 896 A.2d 80

2006 VT 26

[Filed 24-Mar-2006]


       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 order that corrections may be made before this opinion goes
  to press.


                                 2006 VT 26

                                No. 2004-499


  State of Vermont                               Supreme Court

                                                 On Appeal from
       v.                                        District Court of Vermont,
                                                 Unit No. 2, Bennington Circuit

  Kenneth H. Squiers  October Term, 2005


  David A. Howard, J.

  William D. Wright, Bennington County State's Attorney, and David R.
    Fenster, Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

  Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.


       ¶  1.  BURGESS, J.   Defendant Kenneth Squiers appeals from his jury
  conviction for committing a lewd act with a child under the age of sixteen
  in violation of 13 V.S.A. § 2602.  On appeal, defendant claims the trial
  court erred by:  (1) denying his motion for judgment of acquittal when the
  evidence was insufficient to prove that he committed or attempted to commit
  a lewd or lascivious act; and (2) denying his motions for a mistrial and a
  new trial based on a juror's misconduct.  We affirm.

        
                                     I.


       ¶  2.  We first address defendant's argument that the State's evidence
  was insufficient to convict him of the charged offense.  In reviewing a
  denial of a V.R.Cr.P 29 motion for judgment of acquittal, we view the
  evidence presented by the State in the light most favorable to the
  prosecution, excluding any modifying evidence, and determine whether the
  State's evidence sufficiently and fairly supports a finding of guilt beyond
  a reasonable doubt.  See, e.g., State v. Grega, 168 Vt. 363, 380, 721 A.2d 445, 457 (1998).  Given this standard, the facts are summarized as follows.

       ¶  3.  The complainant is defendant's granddaughter, B.P., who was
  fourteen years old at the time of the alleged misconduct.  B.P., her
  mother, stepfather, and younger sister moved in with defendant after they
  were evicted from their apartment.  After living there for a few weeks,
  B.P. was getting ready to leave for school when her grandfather asked her
  for a hug.  B.P.'s mother and sister were waiting in the car, and defendant
  and B.P. were alone in the house.  B.P. thought nothing improper of
  defendant's request because he was her grandfather.  When defendant hugged
  B.P., he squeezed her very tightly, pressing his chest firmly against hers. 
  During this contact, defendant commented: "[T]hese feel firm, am I ever
  going to be able to touch them or see them?"  Defendant then moved his hand
  up and B.P., believing defendant was going to touch her breasts, turned
  away and left before he could do so.
   
       ¶  4.  Some weeks later, defendant entered B.P.'s bedroom while she
  was using her computer and asked her to look up some information on the
  internet.  As she was typing, defendant reached over, touched her on the
  middle of her thigh and moved his hand up her leg until she pushed his hand
  off and told him "not to do that."  At the time she pushed his hand off her
  leg, his hand was within two inches of her "vaginal area."  Defendant
  replied that he "should behave himself" and  "he knew that he shouldn't
  being doing that type of stuff" with her.  She told him to get out of her
  room, and he left, but came back minutes later, declaring "I need to be
  around you, I need to touch you, you wind me up like a clock."  B.P. felt
  uncomfortable and went to her mother's bedroom.  She did not tell her
  mother about her grandfather's actions because she did not want her family
  to be homeless again.

       ¶  5.  Two days later, B.P. was in the kitchen washing dishes. 
  Defendant came up behind her and began rubbing her shoulders, neck, and
  ears, and sniffing her hair.  She told him to leave her alone and he left. 
  B.P. was again in the kitchen doing dishes, a week or so later, when
  defendant came up behind her, put his hand on her shoulder, and whispered
  in her ear, "when are we going to be able to make love?"  B.P. swore at
  defendant and told him he needed to leave her alone.  He turned around,
  chuckling, and told her, as he was walking away, that he didn't think he
  should have to do anything he didn't want to do because it was his house. 
  B.P. was scared and ran, screaming and crying, into her mother's room and
  told her everything that had happened.  They moved out the next day, and
  the foregoing events were reported to the Department of Social and
  Rehabilitative Services (now named the Department of Children and
  Families).

       ¶  6.   Following  an  investigation,  defendant  was  charged  and 
  convicted  of  violating 13 V.S.A. § 2602, which prohibits lewd or
  lascivious conduct with a child.  The statute provides:

    A person who shall wilfully and lewdly commit any lewd or
    lascivious act upon or with the body, or any part or member
    thereof, of a child under the age of sixteen years, with the
    intent of arousing, appealing to, or gratifying the lust, passions
    or sexual desires of such person or of such child, shall be
    imprisoned for the first offense, not less than one year nor more
    than five years, or fined not more than $3,000.00, or both . . . .
   
    Id.  The trial court instructed the jury to consider, for the
    element of a "lewd act," only two incidents alleged: (1) defendant
    hugging B.P., "pressing her breasts against him"; and (2)
    defendant touching B.P.'s leg and "moving his hand up her thigh." 
    The court further instructed the jury that any other acts and
    comments made by defendant could be used only to determine
    defendant's intent and the lack of a mistake or accident. 
    Additionally, the court instructed the jury that "lewd" or
    "lewdly" means "behavior or intent which is lustful or indecent,
    that which offends the common morality of the community as well as
    its sense of decency and propriety."


       ¶  7.  Defendant argues that the State's evidence was insufficient to
  support a finding of guilt beyond a reasonable doubt because the actual
  acts "upon the body" of the child were not in and of themselves lewd. 
  Defendant submits that any lewdness was in his comments, and not in his
  touching.  Defendant claims his hug, however tight, was nothing more than a
  hug, which always involves breast-to-breast contact, and so cannot be
  criminally actionable, notwithstanding his simultaneous comments:  "[T]hese
  feel firm, am I ever going to be able to touch them or see them?" 

       ¶  8.  Defendant also argues that his touching of B.P.'s thigh cannot
  be considered lewd because there was "no touching, rubbing, fondling or
  kissing of any private, sexual part of the body." Defendant also claims
  that the "mere sliding" of his hand up B.P.'s thigh cannot be considered
  criminal because it is only conjectural whether defendant would have
  touched her vagina. (FN1)   
                           
       ¶  9.  We reject defendant's contention that the statutory meaning
  of a "lewd act" upon a child is limited to contact with a so-called
  "private" or "sexual" part of the child's body.  Our overriding objective
  in statutory interpretation is to effectuate the intent of the Legislature. 
  State v. Dixon, 169 Vt. 15, 17, 725 A.2d 920, 922 (1999).  In doing so, we
  first look to the plain, ordinary meaning of the statutory language.  Id. 
  The plain language of the statute refers to a lewd act "upon or with the
  body, or any part or member thereof, of a child."  13 V.S.A. § 2602
  (emphasis supplied).  If the Legislature intended to limit the definition
  of a lewd act to contact with or between particular body parts, it could
  have done so, as demonstrated by the specific language used in other
  statutes that prohibit misconduct of a sexual nature.  See 13 V.S.A. §
  3251(1) (defining "sexual act" for purposes of sexual assault statute as
  "conduct between persons consisting of contact between the penis and the
  vulva, the penis and the anus, the mouth and the penis, the mouth and the
  vulva, or any intrusion, however slight, by any part of a person's body or
  any object into the genital or anal opening of another"); 13 V.S.A. §
  2605(a)(4) & (b) (prohibiting the viewing or recording of the "intimate
  areas" of another person where he or she has a reasonable expectation of
  privacy and defining "intimate areas" as "the naked or undergarment-clad
  genitals, pubic area, buttocks, or female breast of a person"). 
        
       ¶  10.  We conclude that the purpose of § 2602 is to protect children
  from sexual exploitation by any form of physical contact initiated for that
  purpose.  While evidence that a defendant touched a child's genital area
  might present a more obvious case, we decline to hold that the sexual use
  of children prohibited by § 2602 is limited to contact with any particular
  body part. (FN2)  In other words, the actual lewd "act upon or with" the
  body of a child cannot be viewed in isolation from the context in which the
  touching occurs and, in particular, the intent of the perpetrator.  See
  People v. Martinez, 903 P.2d 1037, 1038 (Cal. 1995) ("Whether a particular
  touching is 'lewd' and criminal . . . cannot be determined separate and
  apart from the actor's intent.").  We agree with the California Supreme
  Court's construction of that state's nearly identical statutory language
  that "a lewd or lascivious act can . . . involve 'any part' of the victim's
  body."  Id. at 1042 (quoting Cal Penal Code § 288(a)).
     
       ¶  11.  Accordingly, we conclude that the determination of whether an
  act is "lewd" under § 2602 depends on the nature and quality of the
  contact, judged by community standards of morality and decency in light of
  all the surrounding circumstances, accompanied by the requisite, specific
  lewd intent on the part of the defendant.  Cf. In re P.M., 156 Vt. 303,
  308, 592 A.2d 862, 864 (1991) (noting this Court's deference to
  common-sense community standards when considering, under the facts of the
  particular case, whether conduct is lewd or lascivious under § 2602); 
  State v. Purvis, 146 Vt. 441, 443, 505 A.2d 1205, 1207 (1985) (holding
  criminal intent under statute prohibiting lewd and lascivious conduct
  implicated where, in deference to the "common sense of the community,"
  factors including the defendant's "intentional public exposure of himself,
  with a view to excite unchaste feelings and passions . . . calculated to
  outrage the feelings of the person, to whom he thus exposed himself," as
  opposed to mere nudity, made his conduct punishable) (internal quotations
  omitted).  As the California Supreme Court emphasized in Martinez, the fact
  finder has a critical role in examining the manner of the touching to
  conclude whether a lewd act occurred:
   
    [T]he trier of fact looks to all the circumstances, including the
    charged act, to determine whether it was performed with the
    required specific intent.  Other relevant factors can include the
    defendant's extrajudicial statements, other acts of lewd conduct
    admitted or charged in the case, the relationship of the parties,
    and any coercion, bribery, or deceit used to obtain the victim's
    cooperation or avoid detection.

  Martinez, 903 P.2d  at 1043 (internal quotations and citations omitted); cf.
  State v. Roy, 140 Vt. 219, 230, 436 A.2d 1090, 1095 (1981) ("[T]he specific
  intent requirement in [§ 2602] alleviates any problem with vagueness.").  
   
       ¶  12.   In denying the motion for judgment of acquittal, the
  district court stated that "[a]lthough the alleged acts could have been
  innocent contact, the jury had the additional evidence of the defendant's
  verbal remarks concerning his intent and state of mind as to the acts and
  other evidence of the surrounding circumstances."  The court concluded that
  the "total evidence was sufficient to support the guilty verdict in that
  [the jury] could have found beyond a reasonable doubt that [defendant's]
  actions were of a lewd and lascivious nature and not casual family
  contact."  We agree.  Ordinarily a hug is just a hug, and a touch on the
  leg is just a touch on the leg.  Here, however, the additional evidence of
  defendant's accompanying comments reveal that his intent when pressing
  against his granddaughter's breasts and running his hand up her leg near
  her groin was expressly lewd, as opposed to innocent or accidental. 
  Defendant's comments while pressing B.P.'s breasts very tightly against his
  own chest (stating that B.P.'s breasts felt firm and inquiring whether he
  would be able to touch or see them), and while running his hand up her leg
  within two inches of her vagina (admitting that he knew it was improper,
  but that he had to touch her because she "[wound] him up like a clock"),
  provided sufficient evidence for the jury to conclude that these physical
  contacts were not displays of grandfatherly affection.  Rather, the jury
  had more than sufficient evidence to conclude that the contacts with B.P.'s
  body, feeling her breasts, and feeling up her thigh just short of the
  child's vagina, were made intentionally and for his express lascivious
  purposes.

       ¶  13.  Viewing the totality of the evidence in the light most
  favorable to the State, the jury had sufficient evidence to conclude beyond
  a reasonable doubt that this contact was patently offensive, lewd, and with
  the intent of appealing to defendant's sexual desires, all as charged and
  as prohibited by statute.  Defendant's contemporaneous and subsequent
  comments linked his acts upon  the body of his grandaughter with his
  explicit sexual desire toward B.P.  In light of all the evidence presented,
  we find no error in the district court's denial of defendant's motion for
  judgment of acquittal.

                                     II.


       ¶  14.  We now turn to defendant's claim that the trial court erred in
  denying his motions for a mistrial and a new trial based on a juror's
  misconduct in sharing personal legal research with jurors during their
  deliberations.  Defendant claims that the juror's actions created the
  capacity to influence and taint the jury such that defendant was entitled
  to a new trial.  Defendant further claims that the court improperly
  inserted itself into the jury's deliberative process when it delivered a
  curative instruction, thus compounding the error. 
   
       ¶  15.  The record reveals the following facts relevant to this
  issue.  Defendant's jury trial lasted only one day, with the State resting
  its case just prior to the noon hour.  Before breaking for lunch, the court
  instructed the jury not to discuss the case with anyone or try to learn
  about it during the break.  When the jury returned from lunch, the defense
  rested without presenting any additional evidence, counsel delivered
  closing arguments, and the court instructed the jury without reference to
  any particular statutory citation.  Nevertheless, during deliberations, the
  court received a note from the jury that stated:  "Under T 13 2601 and 2602
  it specifies that speech is not enough to display/prove intent?  Does this
  apply in this case?"  The court shared the question with the attorneys who
  shared concerns that the jury received external information about the law.
  The attorneys expressed additional concern that the jurors may have learned
  of the penalty provisions in the statute.


       ¶  16.  Following this discussion, the court sent a note to the jury
  directing them to follow only the instructions given by the court, and
  inquiring about the source of the information in the jury's note.  In
  response, one juror, Mr. Corcoran, was identified as the source of the
  question.  In the presence of counsel and on the record, the court
  questioned Mr. Corcoran, who explained that he went to the public library
  during the lunch break and read 13 V.S.A. §§ 2601 and 2602, which prompted
  him to tell the other jurors during deliberations that he had read "that
  speech or regular speaking of one's free will" was not enough to convict on
  a charge of a lewd and lascivious act.   Mr. Corcoran said he raised the
  issue with the other jurors because of defense counsel's comments about
  speech in closing argument, but that the other jurors referred him back to
  the court's instructions, commenting that those were the instructions to be
  followed, while another suggested posing the question to the court.  In
  response to the court's further questions, Mr. Corcoran stated he had
  learned of the penalties imposed by both statutory provisions, but had not
  shared that information with the other jurors.  The court then asked Mr.
  Corcoran if he could put aside any impressions he had from reading the
  statutes and deliberate with the jury solely on the jury instructions given
  by the court.  Mr. Corcoran responded affirmatively.

       ¶  17.  After asking Mr. Corcoran to wait outside the courtroom away
  from the other jurors, the court asked counsel whether they would be
  willing to proceed with an eleven-person jury if the court removed Mr.
  Corcoran.  Defense counsel responded that his client would not agree to an
  eleven-person jury and would move for a mistrial in the event the court did
  not remove Mr. Corcoran from the jury.  The state's attorney said she would
  also request a mistrial if Mr. Corcoran were not removed. 

       ¶  18.  The court stated it was inclined to go forward, concluding
  that what happened was not so gross an error that it could not be cured and
  emphasizing that the juror's independent research did not involve
  investigation of facts, but research about the law.  The court called Mr.
  Corcoran back and inquired again if he understood that he needed "to ignore
  and not consider in any way anything [he] . . . interpreted or learned from
  reading either statute," and the court could not agree that his
  interpretation was correct.  The court asked Mr. Corcoran if he would have
  any difficulty with that requirement and he replied "[n]o."  The court
  asked if Mr. Corcoran could disregard any memory or information about
  penalties and whether he could promise the court he would not relay any
  such information to the other jurors.  Mr. Corcoran responded affirmatively
  to both propositions and remained on the panel.

       ¶  19.     The court then brought in the rest of the jury and
  instructed them that the parties have the right to have the case decided
  solely on the evidence presented in court and the legal instructions given
  by the court.  The court further stated:
   
    [A]pparently there was some information that came up from outside
    of those sources, especially about possible legal interpretation
    or legal instruction.  You need to understand that you cannot
    consider any of that information that came up no matter how sort
    of briefly it came up or how limited it came up, that cannot be a
    part of your deliberations.  It is solely the jury instructions
    given to you by the Court that control how you apply the law to
    the facts that came in through testimony.  I need to even further
    comment that it is even possible that that information that came
    up was not correctly interpreted or recalled, okay, but I don't
    even want to get into whether it was or wasn't, but you need to
    understand that's how important it is, so you have to ignore it
    because of that issue, okay.  It is not from the Court, it hasn't
    been reviewed by the attorneys and so it cannot be relied on in
    any way, so I need an affirmation from each of you that you can
    basically sort of restart your deliberations without relying on
    any of that information that had come up, that you will use the
    judicial instructions given to you by the Court that each of you
    have a copy of and that you can do that and fairly apply that law
    to the facts for both the State and Mr. Squiers and if you cannot
    please let me know. 

  The court then asked each juror two questions: whether the juror could go
  forward on those requirements; and whether the juror had any concerns or
  feelings that he or she could not do so.  All jurors responded that they
  could proceed and could put aside any extraneous information.  The jury
  then resumed deliberations and returned with a guilty verdict.  Defendant
  seeks a new trial on the basis that the jury was tainted by extraneous
  influence. 

       ¶  20.  "[D]efendant is entitled to a fair trial free of the
  suspicious taint of extraneous influences."  State v. McKeen, 165 Vt. 469,
  472, 685 A.2d 1090, 1093 (1996).  The trial judge is in the best position
  to determine whether a verdict was influenced by extraneous influences
  because of the relationship the judge develops with the jury during the
  course of a trial, and because the determination "is a fact-driven exercise
  that will depend upon the circumstances of the case."  Id. at 472, 685 A.2d 
  at 1092 (internal quotations omitted).  For these reasons, we accord every
  reasonable presumption in favor of the trial court's determination, and we
  will uphold the decision absent a showing of abuse or withholding of
  discretion.  Id. at 472, 685 A.2d  at 1093.  For the reasons that follow, we
  conclude that the trial court did not abuse its discretion in denying
  defendant's motion for a new trial. 
   
       ¶  21.  Not every irregularity in the course of a trial will result
  in an invalidation of a jury's verdict.  To ensure that a defendant is
  protected from extraneous influences, we have adopted a two-part inquiry. 
  Id. "A defendant alleging either extraneous influences or juror misconduct
  must first demonstrate that an irregularity occurred and it had the
  capacity to affect the jury's result."  Id.  If the defendant so
  demonstrates, the State then bears the burden to show "that the
  irregularity did not in fact prejudice the jurors against the defendant." 
  Id. at 471, 685 A.2d  at 1092.  Citing McKeen as the appropriate standard,
  the trial court found no basis for a new trial.  The trial court reasoned
  that the only extraneous information shared with the jury was one juror's
  interpretation of the law on intent, the court reaffirmed its instructions
  on that issue, and the panel confirmed, one by one, that they could and
  would follow only those instructions.  The court also observed:  "[I]t was
  clear to the court that the rest of the panel disagreed with the one
  juror's interpretation of the legal instructions and that is why the
  written questions came to the court in the first place."  The court also
  found that, given the nature of the allegations in this case, merely
  learning of the possible penalty would not prejudice Mr. Corcoran against
  the defendant.  Instead, the court noted, it was more likely that the
  information could prejudice the State because a juror might think the
  maximum penalty too harsh for the acts alleged.  The court found it
  entirely speculative that a juror would think the penalty too light and
  "casually convict" in violation of the juror's oath.  Further, the court
  found that the focus of Mr. Corcoran's extraneous research was on the law
  of intent, not the possible penalty for conviction.
   
       ¶  22.  Although the court did not explicitly state its conclusions
  as to each part of the two-part test for invalidation of a jury verdict, it
  is apparent from the court's reasoning that it found the extraneous
  information did not have the capacity to affect the jury's result because
  the information concerned only a legal, rather than factual, issue that was
  duly brought to the attention of the court, and the court reiterated its
  instructions and obtained an affirmation from all jurors that they would
  apply only the law given to them in the court's instructions.  We agree
  that on the record presented here the court effectively cured any potential
  influence that Mr. Corcoran's independent research and opinion of the law
  may have had on the jury's deliberations. 
   
       ¶  23.  Finally, we reject defendant's argument that the trial
  court's curative instructions resulted in the court improperly
  "interjecting itself into the jury's deliberations."  Defendant claims the
  court directly commented on the "validity" of the extraneous information-as
  opposed to simply mandating that it be completely ignored-creating the
  potential of prejudicing the other jurors against anything Mr. Corcoran
  contributed during the deliberations.  Defendant also argues that these
  additional comments might have caused the jury to disregard defense
  counsel's closing argument, since Mr. Corcoran said he made the inquiry
  based on defense counsel's comments about speech.  We find this argument
  unpersuasive.  The court expressly stated that it was not commenting on
  whether the information was correct.  The court's comment that it was
  possible that the information relayed may not have been correctly
  interpreted or recalled was simply an explanation of the importance of the
  jury following only the court's instructions.  We recognize that the
  court's legal instructions on the elements of the charge may have
  conflicted with defense counsel's argument to the jury that the alleged
  acts were insufficient to establish the offense and that the jury should
  not consider defendant's comments.  If the jury chose to disregard any or
  all of defense counsel's closing argument because it was inconsistent with
  the court's legal instructions, it was within the jury's province to do so. 
  We find no reason to believe, however, that the jury was potentially
  prejudiced against defendant by the court's statement that extraneous
  information about the law cannot be relied upon because the court has not
  established its accuracy.


       Affirmed.    



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice




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                                  Footnotes


FN1.  The court instructed the jury that if they found defendant not guilty
  of the charged offense, they could consider whether defendant was guilty of
  the lesser-included offense of attempting to wilfully and lewdly commit a
  lewd act with the body of a child.  Because the jury convicted defendant of
  the charged offense, our consideration of the sufficiency of the evidence
  relates only to a completed violation of § 2602.

FN2.  Nor do we deem a contact per se "lewd" because it involves contact
  with a "private" part of a child's body.  Such contact may occur in a
  variety of legitimate contexts by parents, physicians, or other caretakers.


FN3.  Cal. Penal Code § 288(a) provides:

    Any person who willfully and lewdly commits any lewd or lascivious
    act . . . upon or with the body, or any part or member thereof, of
    a child who is under the age of 14 years, with the intent of
    arousing, appealing to, or gratifying the lust, passions, or
    sexual desires of that person or the child, is guilty of a felony
    and shall be punished by imprisonment in the state prison for
    three, six, or eight years.