State v. Burgess

State v. Burgess (2005-199)

2007 VT 18

[Filed 23-Feb-2007]


       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.

                                 2007 VT 18

                                No. 2005-199

  State of Vermont                              Supreme Court

                                                On Appeal from
       v.                                       District Court of Vermont,
                                                Unit No. 3, Franklin Circuit

  Timothy Burgess                               September Term, 2006


  Mark J. Keller, J.


  Diane C. Wheeler, Franklin County Deputy State's Attorney, St. Albans, for
    Plaintiff-Appellee.

  Timothy R. Burgess, Pro Se, Swanton, Defendant-Appellant.


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

       ¶  1.  BURGESS, J.  Defendant Timothy Burgess appeals pro se from
  his conviction of sexual assault and lewd and lascivious conduct against
  his minor stepdaughter, J.H.  He argues that the trial court committed
  reversible error by: (1) admitting hearsay evidence; (2) admitting evidence
  of his prior sexual conduct; (3) allowing the prosecutor to ask questions
  that were contrary to pretrial rulings and based on facts not in evidence;
  (4) allowing the Franklin County State's Attorney to testify; and (5)
  denying his motion for judgment of acquittal and a new trial.  We affirm.
   
       ¶  2.  Defendant was charged with sexual assault and lewd and
  lascivious conduct in January 2004.  The information alleged that defendant
  placed his penis in J.H.'s hand between December 1997 and December 1998,
  when J.H. was ten years old, and that defendant inserted his fingers into
  J.H.'s vulva between February 2003 and December 2003, when J.H. was
  sixteen.

       ¶  3.  The following evidence was presented at trial.  J.H. lived with
  her brother, her mother, Lisa Burgess, and defendant.  In April 1998, Mrs.
  Burgess moved in with another man, leaving J.H. and her stepbrother with
  defendant.  During the month that Mrs. Burgess was gone, J.H. woke up
  several times to find defendant's penis in her hand.  She testified that
  defendant used her hand to masturbate.  In September 2000, J.H. told
  several friends about defendant's behavior.  Shortly thereafter, she was
  interviewed by police and officials from the Department for Children and
  Families (DCF).  At that time, J.H. denied that anything improper occurred.

       ¶  4.  J.H. testified at trial that defendant began touching her again
  in the fall of 2003, around the same time that her mother again became
  involved with a different man.  She stated that she woke up numerous times
  to find defendant's fingers in her vagina.  In late December 2003, J.H.
  told her friend Amber Felisko that she was planning to run away.  According
  to J.H., Amber understood that she was leaving because she could no longer
  take defendant's behavior.  J.H. ran away with her boyfriend shortly
  thereafter, testifying that she left to get away from defendant.  J.H. was
  discovered in Pennsylvania the following day, and her biological father,
  her father's girlfriend Missy Munro, and defendant, went to pick her up. 
  J.H. testified that on the ride back to Vermont, she told Ms. Munro that
  defendant had been touching her inappropriately.  After learning of J.H.'s
  disclosures, J.H.'s mother eventually told defendant to move out, and the
  police were contacted.
   
       ¶  5.  Mrs. Burgess also testified at trial.  She stated that she
  confronted defendant about the abuse shortly after J.H.'s return from
  Pennsylvania.  She told defendant not to deny abusing J.H. because it was
  "the same stuff" that he had done to her while she was sleeping, and "it's
  familiar."  Mrs. Burgess testified that defendant told her that "it all
  started" when she left him for another man in April 1998, and that he told
  her "it was just my fingers."  According to Mrs. Burgess, defendant
  admitted to her that he might be attracted to J.H., that it was "definitely
  a girl thing," and that he had not abused their son.  Mrs. Burgess stated
  that, after ordering defendant to move out, she found a note from him that
  stated "Lisa, I'm sorry, I love you, I'm seeking help."  Defendant verbally
  reiterated to Mrs. Burgess that he needed to get some help, and told her
  that he hoped she would stand by him.

       ¶  6.  At trial, defendant denied abusing J.H., and testified that
  after retrieving J.H. from Pennsylvania, he made some "harsh statements" to
  her about her boyfriend.  He stated that on the car ride home, J.H. looked
  over at him and whispered that she would "get [him]."  Defendant admitted
  leaving the note described above, but asserted that what he had been
  "sorry" about was that Mrs. Burgess believed that the abuse could have
  happened, and that he was "seeking help" in dealing with her extramarital
  affairs.  He denied confessing to his wife.  The jury found defendant
  guilty of both counts, and this appeal followed. 
   
       ¶  7.  Defendant first argues that the court committed reversible
  error by allowing numerous witnesses to testify to J.H.'s hearsay
  statements. (FN1)  He maintains that evidence of the victim's prior
  consistent statements should have been excluded because, as of October
  2002, J.H. had a motive to lie to explain her trip to Pennsylvania with her
  boyfriend.  Defendant asserts that because this case presented a
  credibility contest, the improperly admitted evidence cannot be considered
  harmless beyond a reasonable doubt. 
                    
       ¶  8.  Defendant failed to object to any of this evidence at trial,
  and we find no plain error.  See State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 26 (1993) ("Plain error exists only in exceptional circumstances
  where a failure to recognize error would result in a miscarriage of
  justice, or where there is glaring error so grave and serious that it
  strikes at the very heart of the defendant's constitutional rights."
  (citation omitted)).  We begin with defendant's challenge to Ms. Munro's
  testimony.  The record shows that the State questioned Ms. Munro about her
  trip to Pennsylvania, cautioning her to respond "yes" or "no" to its
  questions.  The prosecutor asked Ms. Munro if at some point J.H. said that
  "there had been inappropriate conduct."  Defendant objected, and the
  parties discussed the issue at the bench.  The State indicated its belief
  that the court had ruled that it could lead Ms. Munro with that specific
  question to avoid the introduction of any hearsay evidence.  The State
  explained that based on its earlier offer, the next question would be "did
  you call the authorities," and "why not?"  The court noted that the parties
  agreed in their opening statements that J.H. told Ms. Munro about the abuse
  and that Ms. Munro had not contacted police.  Defense counsel stated,
  "that's fine," and the court allowed the State to ask its leading question. 
  Ms. Munro then testified that J.H. told her that defendant had engaged in
  some inappropriate sexual conduct, and that she had not contacted the
  police because they were in Pennsylvania and she did not think that there
  was anything Pennsylvania police could do.

       ¶  9.  The court did not commit plain error in allowing this
  testimony.  Ms. Munro provided  no details about J.H.'s conversation with
  her.  Rather, with defendant's acquiescence, the State sought to establish
  why Ms. Munro had not contacted the police.  Thus, J.H.'s out-of-court
  statement was not offered for its truth, but rather to explain Ms. Munro's
  behavior.  Cf. V.R.E. 801(c) (defining hearsay as "a statement, other than
  one made by the declarant while testifying at the trial or hearing, offered
  in evidence to prove the truth of the matter asserted").   Even assuming
  that the statement was inadmissible hearsay, any error would be harmless. 
  J.H. testified to this same  conversation with Ms. Munro, and she was
  cross-examined by defendant.  Ms. Munro's statement about J.H.'s disclosure
  was merely cumulative to this testimony.  See State v. Gallagher, 150 Vt.
  341, 349, 554 A.2d 221, 226 (1988) (admission of hearsay evidence harmless
  error in light of merely cumulative nature of testimony, and the fact that
  the hearsay declarant was available for cross-examination); see also State
  v. Derouchie, 153 Vt. 29, 32-33, 568 A.2d 416, 417-18 (1989) (reaching
  similar conclusion).  

       ¶  10.  We next consider the testimony offered by Amber Felisko. 
  Amber testified that J.H. told her that she was running away on the morning
  that she left Vermont.  The prosecutor asked Amber if at some point before
  that morning, J.H. told her that defendant had engaged in inappropriate
  sexual contact, directing Amber to answer "yes" or "no."  Amber responded
  affirmatively, but went on to say that J.H. never "completely said
  anything" to her about the abuse but rather said something along the lines
  of "things happening."  Amber later told her mother what J.H. told her.
  (FN2)
    
       ¶  11.  Defendant did not object to any of this testimony, and in fact
  elicited additional hearsay statements from Amber.  Assuming that J.H.'s
  hearsay statement about "things happening" was made after J.H. had a motive
  to lie and therefore, was not a prior consistent statement allowable under
  V.R.E. 801(d)(1)(B), the admission of this testimony nonetheless does not
  constitute plain error.  Cf. State v. Lemay, 2006 VT 76, ¶ 6, __ Vt. __,
  908 A.2d 430 (explaining that to constitute nonhearsay under V.R.E.
  801(d)(1), a prior consistent statement must have been made before a motive
  to falsify arose because "a consistent statement that predates the motive
  is a square rebuttal of the charge that the testimony was contrived as a
  consequence of that motive" (citation omitted)).  The record shows that
  J.H. testified and was cross-examined about her disclosures to Amber.  As
  with Ms. Munro's testimony, Amber's testimony about J.H.'s statement was
  cumulative, and any error in its admission was harmless.  See Gallagher,
  150 Vt. at 349, 554 A.2d  at 226; see also State v. Carter, 164 Vt. 545,
  557, 674 A.2d 1258, 1267 (1996) (concluding that admission of victim's
  prior consistent statements through her sister was harmless error where
  State had elicited same information from victim without objection, defense
  counsel cross-examined victim, and sister's testimony simply confirmed
  information that defense counsel had already elicited from victim).   
   
       ¶  12.  Finally, we find no plain error in the court's admission of
  any hearsay statements  from J.H. through Mrs. Burgess's testimony.  With
  respect to out-of-court statements allegedly made by J.H., Mrs. Burgess
  testified only that shortly after the parties returned from Pennsylvania,
  "[w]e just started talking about what happened when [J.H.] ran away and
  [J.H.] talked about her time at the end and then [defendant] was acting
  really fidgety and nervous."  Defendant also cites to Mrs. Burgess's
  testimony that she received a telephone call from a DCF official in
  September 2000, who informed her that J.H. denied being abused, that DCF
  had "no reason not to believe her," and that it had closed the case. 
  Finally, as relevant to this claim of error, defendant points to Mrs.
  Burgess's statement, offered in response to a question from defense
  counsel, that Ms. Felisko called her and told her that Amber had said that
  J.H. had been molested by defendant and that "and if [J.H.] ran away it was
  nothing against [Mrs. Burgess], it was that she needed to get away and that
  was why."

       ¶  13.  We fail to see how defendant was unduly prejudiced by the
  admission of any of this evidence.  Mrs. Burgess did not testify to
  anything specific that J.H. said after returning from Pennsylvania.  Her
  statement about the phone call from DCF was, if anything, to defendant's
  benefit.  Moreover,  there was no dispute about what DCF did or the
  conclusion that it reached in September 2000; numerous witnesses testified
  about these events.  Finally, Mrs. Burgess's description of the phone call
  that she received from Ms. Felisko was not only elicited by defense
  counsel, but it was cumulative to trial testimony offered by Ms. Felisko,
  Amber, and J.H., all of whom were subject to cross-examination.  We find no
  plain error. (FN3) 
                    
       ¶  14.  We turn next to defendant's argument that the court erred in
  allowing Mrs. Burgess to testify to his hearsay statements.  As noted
  above, Mrs. Burgess testified that defendant told her "it all started" when
  she left him for another man; that "maybe somewhere deep down" he was
  attracted to J.H.; that he had not had sex with J.H. but just used his
  fingers; that it was "definitely a girl thing," and he had not abused his
  son; and that defendant told her he was sorry and that he was getting help. 
  These statements were plainly admissible as nonhearsay under V.R.E.
  801(d)(2)(A) because they are statements by a party-opponent.  See State v.
  Bernier, 157 Vt. 265, 268, 597 A.2d 789, 791 (1991) (explaining that
  admissions include any statement made and offered against a party-opponent,
  and the statements need not be against the declarant's interest when made);
  see also United States v. Leal, 781 F.2d 1108, 1111 (5th Cir. 1986) 
  (explaining that "a party's words, offered against him, form an exclusion
  to the definition of hearsay").  

       ¶  15.  Defendant's reliance on State v. Verrinder, 161 Vt. 250, 637 A.2d 1382 (1993), is misplaced.  In that case, the defendant sought to
  introduce his own statement of remorse, which he  made to a witness shortly
  after killing someone.  Id. at 256, 637 A.2d  at 1387.  Defense counsel
  argued that the statement was admissible, not as nonhearsay, but as a
  present sense impression, an excited utterance, or a statement of
  then-existing mental condition, all exceptions to the hearsay rule.  Id. 
  The trial court rejected this argument and excluded the testimony.  Id.  We
  affirmed.  We did not hold, as defendant argues, that a defendant's hearsay
  statements are always inadmissible at trial unless they fall within the
  three hearsay exceptions discussed in Verrinder.  
   
       ¶  16.  Defendant next argues that the court committed reversible
  error by admitting evidence of his past sexual acts with Mrs. Burgess.  He
  points to his wife's statement that J.H.'s description of the abuse was
  "familiar" to her, and that defendant had done the same things to her while
  she was sleeping.  Defendant asserts that this error was compounded by the
  prosecutor raising it during her closing argument.

       ¶  17.  Again, defendant did not object to this testimony below, nor
  did he did argue that the evidence should be excluded under V.R.E. 404(b)
  or V.R.E. 403. (FN4)  In fact, defendant elicited this same evidence from
  Mrs. Burgess on cross-examination.  We find no plain error.  First, this
  evidence does not appear to have been offered as substantive evidence of
  defendant's past conduct.  Mrs. Burgesss did not describe any specific
  sexual acts that defendant had performed, nor did the State inquire on this
  subject.  Rather, this testimony was offered in connection with Mrs.
  Burgess's  description of her confrontation with defendant and defendant's
  subsequent confession.  Cf. State v. Bruyette, 158 Vt. 21, 27, 604 A.2d 1270, 1272 (1992) (explaining that V.R.E. 404(b) "operates to exclude
  evidence of prior acts that are similar to the charged crime, if the
  evidence is introduced for the purpose of showing a general propensity to
  commit the acts in question"); see also State v. Lawton, 164 Vt. 179, 182,
  667 A.2d 50, 54 (1995) (evidence of prior bad acts may not be admitted "to
  prove the character of a person in order to show that he acted in
  conformity therewith," because when used solely for this purpose, there is
  a danger that jury will convict defendant of charged crime solely because
  he has committed other crimes or acts (citing V.R.E. 404(b)).  Even if
  wife's statements fell within Rule 404(b), the admission of this testimony
  would not constitute plain error, particularly given the strength of the
  State's case, including defendant's confessions, and the fact that
  defendant elicited this same testimony from Mrs. Burgess.  See State v.
  Babson, 2006 VT 96, ¶ 8, __ Vt. __, 908 A.2d 500 (mem.) ("Where admission
  of prejudicial evidence is claimed as plain error, the appellant must show
  the judgment was 'substantially affected' by the admission." (citing State
  v. Bubar, 146 Vt. 398, 401, 505 A.2d 1197, 1199 (1985)).  As we found in
  Babson, "[t]he State's independent evidence of defendant's guilt overwhelms
  any effect the erroneous testimony may have had on the verdict."  Id. ¶ 10. 

       ¶  18.  Given the discussion above, we reject defendant's assertion
  that the prosecutor erred by repeatedly asking questions that suggested
  facts not properly in evidence, as well as his claim that he was denied due
  process as a result of a pattern of prosecutorial misconduct.  The record
  does not support these assertions.  

       ¶  19.  Defendant next argues that the trial court committed
  reversible error in allowing the Franklin County State's Attorney to
  testify at trial.  The record indicates the following.  During his direct
  examination, defendant testified to his recollection of the DCF
  investigation in September 2000.  He stated that he received a letter from
  DCF, which indicated that it was not going to take any action on the
  allegation of sexual abuse.  Defendant testified that he was surprised to
  receive the letter.  He then stated, "knowing the [Franklin County] State's
  Attorney fairly well I called him and simply asked him what this was all
  about."  He testified that based on his conversation with the State's
  Attorney, he learned that "the complaining person had made these
  allegations before and not to worry about it."
   
       ¶  20.  The State then called the State's Attorney, James Hughes, as
  a rebuttal witness.  Mr. Hughes explained that he and defendant had been
  neighbors, and that J.H. and his daughter had been friends.  He testified
  that he did not recall ever discussing an allegation of sexual abuse or a
  letter from DCF with defendant.  He stated that he never told defendant
  that Holly Creeks, the woman who contacted DCF, had made allegations of
  inappropriate sexual conduct about others.  The prosecutor then asked Mr.
  Hughes if he had "any concerns" about J.H. around this time.  Mr. Hughes
  responded affirmatively, and defendant objected, arguing that Mr. Hughes
  was going beyond the scope of rebuttal.  The court sustained the objection,
  and the prosecutor discontinued this line of questioning.  Defendant did
  not ask that Mr. Hughes' answer be stricken, or that the court give the
  jury a cautionary instruction.     

       ¶  21.  Defendant now argues that his conviction should be reversed
  because Mr. Hughes "placed his personal imprimatur on the veracity of the
  State's case," and his testimony went beyond mere rebuttal on the
  collateral issue raised by defendant on direct examination.  We reject this
  argument.  First, Mr. Hughes had no direct involvement in prosecuting the
  case against defendant, and the cases cited by defendant are largely
  inapposite.  Cf. State v. Griffith, 481 P.2d 34, 41 (Idaho 1971) (finding
  no reversible error where deputy prosecuting attorney called prosecuting
  attorney to testify to statements made by witness during investigative
  interview, but cautioning that the prosecuting attorney should not be
  called to testify against defendant unless such testimony is "absolutely
  essential"); State v. Alfano, 701 A.2d 1296, 1300 (N.J. Super. Ct. App.
  Div. 1997) (recognizing that trial court has discretion in determining
  whether a defendant can call the prosecuting attorney as a witness). 
  Indeed, the record suggests that defendant was trying to use Mr. Hughes'
  position to bolster his testimony that the victim's allegation in 2000 was
  unfounded.  The State was entitled to call Mr. Hughes to rebut this
  testimony, and Mr. Hughes' ambiguous statement that he had "concerns" about
  J.H. does not rise to the level of plain error.  
   
       ¶  22.  Finally, we reject defendant's assertion that the trial court
  erred in denying his motion for a new trial and judgment of acquittal
  without holding a hearing on the motion or issuing written findings. 
  Defendant maintains that, absent written findings, this Court cannot
  discern if the trial court abused or withheld its discretion.  We disagree. 
  The record shows that in his consolidated motion for new trial and judgment
  of acquittal, defendant raised all of the same arguments that he now raises
  on appeal, with the exception of his assertion that the jury's verdict was
  against the weight of the credible evidence.  As discussed above, we find
  all of these arguments without merit.  Thus, the trial court could not have
  abused its discretion in denying defendant's motion for a new trial.  See
  State v. Desautels, 2006 VT 84, ¶ 10, __ Vt. ___, 908 A.2d 463 (trial
  court has discretion in deciding if a new trial is warranted under
  V.R.Cr.P. 33 "in the interests of justice").  We similarly find no error in
  the denial of defendant's motion for judgment of acquittal because the
  credible evidence in the record amply supports the jury's verdict.  See
  State v. Squiers, 2006 VT 26, ¶ 2, __ Vt. __, 896 A.2d 80 (on review of
  denial of V.R.Cr.P. 29 motion for judgment of acquittal, Supreme Court
  views evidence in the light most favorable to the prosecution, excluding
  any modifying evidence, to determine if State's evidence sufficiently and
  fairly supports a finding of guilt beyond a reasonable doubt). 

       Affirmed.


                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  The record citations provided by defendant do not support his assertion
  that the trial court made a pretrial ruling that all of the victim's
  hearsay statements would be excluded unless a showing was made that the
  statements occurred before a motive to fabricate arose.  The subject of the
  pretrial ruling appears to concern the testimony of Ms. Munro and police
  officer Kevin Bushey.  The State sought to introduce a transcript of Ms.
  Munro's interview with Officer Bushey, which contained Ms. Munro's
  recollection of specific statements that J.H. made on the way back to
  Vermont.  The State argued that the statements were admissible under V.R.E.
  803(3) as reflecting the victim's then-existing mental condition.  The
  court's ruling does not appear in the transcript provided by defendant.  In
  any event, the transcript of Ms. Munro's interview was not offered at
  trial, nor did Ms. Munro testify to the substance of her conversation with
  J.H.  As to Officer Bushey, defense counsel argued, and the State agreed,
  that the officer would not discuss what J.H. told him during her initial
  interview unless the door was opened to this testimony.  Officer Bushey did
  not testify to the substance of his interview with J.H. at trial. 

FN2.  Amber's mother, Cindy Felisko, testified that Amber received a
  telephone call the morning that J.H. ran away, and that defendant called
  later that afternoon looking for J.H.  Amber eventually told Ms. Felisko
  what J.H. said, and Ms. Felisko called Mrs. Burgess and told her what she
  knew.  Ms. Felisko did not testify to any specific out-of-court statements
  made by J.H., nor did Ms. Felisko provide any detail about what Amber told
  her.  Rather, she stated that Amber "told me what she had heard from [J.H.]
  and why [J.H.] had run away, and why she didn't want to talk to [defendant]
  and what not."  We find no plain error in the admission of this testimony. 

FN3.  Officer Kevin Bushey did not testify to any of the victim's hearsay
  statements, and thus we do not address the admissibility of his testimony. 
  Additionally, the testimony offered by Erica Robertson, Holly Creeks, and
  St. Albans Police Chief Marcel Renaudette concerned J.H.'s disclosure of
  abuse in September 2000.  As defendant essentially concedes in his brief,
  these statements were made well before J.H. had an alleged motive to lie to
  cover up her trip to Pennsylvania.  Thus, the victim's prior consistent
  statements were admissible as nonhearsay under V.R.E. 801(d)(1).  Finally,
  we note that while defendant complains, generally, that the trial court
  erred by allowing certain witnesses to explain why the victim may have made
  prior consistent statements, we find no such explanations in the testimony
  cited by defendant (other than those discussed) that fall within the
  definition of hearsay.  See V.R.E. 801 (defining hearsay). 

FN4.  Contrary to defendant's suggestion, defense counsel did not object to
  this evidence on V.R.E. 404(b) grounds.  The discussion to which defendant
  refers in his brief involved a question from the jury, which the trial
  court declined to answer.