State v. Wiley

State v. Wiley (2005-435)

2007 VT 13

[Filed 02-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 13

                                No. 2005-435


  State of Vermont                               Supreme Court

                                                 On Appeal from
       v.                                        District Court of Vermont,
                                                 Unit No. 1, Windham Circuit

  Timothy Wiley                                  September Term, 2006


  John P. Wesley, J.


  Dan M. Davis, Windham County State's Attorney, and Tracy Kelly Shriver,
    Deputy State's Attorney, Brattleboro, 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 Timothy Wiley appeals from his
  convictions for aggravated sexual assault, lewd and lascivious conduct with
  a child, and obstruction of justice.  Defendant asserts that (1) his
  convictions for both aggravated sexual assault and lewd and lascivious
  conduct violated the Double Jeopardy Clause, and (2) the evidence was
  insufficient to sustain any of the convictions.  We affirm.
   
       ¶  2.  On May 22, 2004, A.H. reported to her father, and then to
  police, that her mother's boyfriend had forcible sex with her on numerous
  occasions in the past several months.  A.H was thirteen at the time.  The
  next day, police collected blankets and sheets from A.H.'s bed.  Sperm and
  female epithelial cells were later collected from a seminal fluid stain
  found on the bedding.  DNA from those cells was compared to DNA samples
  from A.H. and defendant, and the two were found to be likely sources of the
  cells.  The State filed charges against defendant for aggravated sexual
  assault and lewd and lascivious conduct in June 2004.

       ¶  3.  Defendant was held for lack of bail pending trial.  While
  incarcerated, defendant had a series of telephone conversations with A.H.'s
  mother, a developmentally impaired woman.  Recordings of three of the
  conversations were introduced by the State at trial.  In the first
  conversation, from July 18, 2004, the mother indicated that she was afraid
  to lose custody of A.H.  Defendant suggested that the mother talk to A.H.
  and tell A.H. that she's lying.  In the second conversation, recorded two
  days later on July 20, 2004, defendant asked the mother to talk to A.H. and
  persuade her to drop the charges.  Otherwise, defendant warned, he would
  testify at trial and reveal information that would cause the state to take
  A.H. away from her.  The mother responded by saying: "Yeah.  Oh, my God. 
  It's not good."  In the third conversation, recorded February 25, 2005,
  defendant told the mother: "I need your help . . . [Y]ou have to try to
  remember . . . me having sex in [A.H.]'s room and then climbing out the
  window."  After furthering prompting by defendant, the mother twice denied
  remembering having sex with defendant in A.H.'s room.  Defendant replied,
  "that right there isn't going to help," and told the mother that if she was
  asked in court about the sexual encounter she should say that she
  remembered it.  Based on these recordings, the State charged defendant with
  two counts of obstructing justice for threatening the mother with losing
  custody of A.H. and for suggesting that she lie under oath about
  remembering a sexual encounter with defendant on A.H.'s bed.  After the
  information was amended to add these charges, defendant waived his right to
  a jury and was tried by the court. 
   
       ¶  4.  A.H. testified to forced vaginal intercourse with one "Tim
  Wiley" on more than five occasions in the months preceding her report to
  police.  A.H. also described one instance when Tim Wiley forced A.H. to
  perform oral sex.  According to A.H., these acts occurred while Tim Wiley
  was living with her and her mother.  A.H. said that she thought of Tim
  Wiley as her "stepdad" and as her mother's "true boyfriend."  However, A.H.
  was not asked to identify the defendant sitting in the courtroom as the
  perpetrator of the assaults or as the Tim Wiley she was referring to.

       ¶  5.  The mother, in her testimony, described living in a series of
  apartments with A.H. and defendant.  The mother made a courtroom
  identification of defendant as the Tim Wiley with whom she and A.H. had
  lived.  The mother also identified the voices from the recorded telephone
  conversations as those of herself and defendant.  The mother stated that
  she never felt threatened by anything defendant said during those
  conversations and testified to remembering a sexual encounter with
  defendant on A.H.'s bed.  The mother maintained that she remembered the
  encounter without assistance from anyone. 

       ¶  6.  At the close of evidence, and again post trial, defendant moved
  for a judgment of acquittal pursuant to Vermont Rule of Criminal Procedure
  29.  Defendant's motions for acquittal on the sexual assault and lewd and
  lascivious conduct charges were premised on the State's failure to have
  A.H. identify the defendant seated in the courtroom as the Tim Wiley who
  engaged in those sexual acts.  In his motions for acquittal on the
  obstruction of justice charges, defendant contended that the State failed
  to prove that the mother was actually made afraid by defendant's threats
  and that the State failed to prove that her testimony about a sexual
  encounter with defendant on A.H.'s bed was not truthful.  The trial court
  denied defendant's motions.  Defendant's appeal challenges these rulings,
  and raises the issue of whether, under the facts presented, conviction for
  both aggravated sexual assault and lewd and lascivious conduct violated the
  Double Jeopardy Clause.
   

                             I.  Double Jeopardy

       ¶  7.  Defendant raises for the first time on appeal that convictions
  for both aggravated sexual assault and lewd and lascivious conduct are a
  violation of the constitutional prohibition against double jeopardy.  A
  constitutional issue not raised at trial is reviewed only for plain error. 
  State v. Judkins, 161 Vt. 593, 594, 641 A.2d 350, 351 (1993) (mem.).  Plain
  error must be both obvious and prejudicial, id., and neither is present
  here.

       ¶  8.  The Double Jeopardy Clause provides that no person may "be
  subject for the same offence to be twice put in jeopardy of life or limb." 
  U.S. Const. amend. V.  The Clause prohibits second or subsequent
  prosecutions for the same offense as well as multiple impositions of
  punishment for an offense.  State v. Grega, 168 Vt. 363, 382, 721 A.2d 445,
  458 (1998) (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). 
  The Double Jeopardy Clause does not, however, prevent cumulative
  punishments when the Legislature has proscribed conduct by more than one
  criminal statute or offense.  Missouri v. Hunter, 459 U.S. 359, 367-68
  (1983).  "[W]hether or not a conviction and sentence may be had under each
  statute is a question of legislative intent, not constitutional
  prohibition."  Grega, 168 Vt. at 382, 721 A.2d  at 458; see also id. at 368. 
  In the absence of express legislative intent, we apply the test of
  statutory construction first enunciated in Blockburger v. United States,
  284 U.S. 299, 304 (1932).  State v. Hazelton, 2006 VT 121, ¶ 24, __ Vt. __. 
  Under Blockburger, "two offenses are considered the same offense for double
  jeopardy purposes unless each provision requires proof of a fact that the
  other does not."  Id. (internal quotations omitted).  
   
       ¶  9.  The charges of aggravated sexual assault and lewd and
  lascivious conduct did not specify the acts to which each pertained.  The
  aggravated sexual assault count charged defendant with committing "repeated
  nonconsensual sexual acts as part of a common scheme or plan" between March
  28, 2004 and May 22, 2004.  The count of lewd and lascivious conduct
  charged defendant with "contact between his penis and the vagina of A.H."
  during the same time period.  The verdict in the case was no more specific
  in terms of the acts that were proven for each charge; the court stated
  only that the State had proven the acts alleged beyond a reasonable doubt. 
  In the absence of a more specific information, defendant argues, the charge
  of repeated nonconsensual sexual acts during the time at issue must have
  included all of the sexual acts described by A.H. (FN1) and there was,
  therefore, no remaining conduct that could be assigned to the lewd and
  lascivious conduct charge. 
   
       ¶  10.  Defendant is correct that aggravated sexual assault by
  repeated nonconsensual sexual  acts can, by its terms, encompasses
  multiple-two or more-sexual acts.  A.H.'s testimony described acts of
  vaginal and oral intercourse; A.H. did not describe any other type of
  sexual conduct by, or contact with, defendant.  According to defendant, all
  of the conduct alleged is therefore covered by the assault charge.  In the
  absence of any other improper sexual conduct to support the lewd and
  lascivious charge, defendant maintains, a conviction for lewd and
  lascivious conduct was impermissible because all elements of lewd and
  lascivious conduct are necessary elements to sexual assault.  The State
  responds that under State v. Fuller two sexual acts are sufficient to
  satisfy the requirement of "repeated" acts.  168 Vt. 396, 400-02, 721 A.2d 475, 479-80 (1998).  Therefore, the State argues, we may assume that the
  trial court found two or more, but not all, of the sexual acts to fulfill
  the sexual assault charge and found whatever remaining acts fulfilled the
  lewd and lascivious conduct charge.  We conclude that conviction under both
  charges did not violate double jeopardy.  However, we need not  assign acts
  to one charge or another as the State suggests.  Rather, we need only
  determine whether the two offenses contain distinct elements to satisfy the
  Blockburger test. 

   
       ¶  11.  Several different elements in the two criminal statutes lead
  us to conclude that the Blockburger test is satisfied.  As charged in this
  case, lewd and lascivious conduct consisted of:  defendant wilfully
  committing a lewd act upon a person under sixteen years of age with the
  intent to appeal to his own sexual desires.  See 13 V.S.A. § 2602; State v.
  Forbes, 161 Vt. 327, 332-33, 640 A.2d 13, 16 (1993) (discussing elements of
  lewd and lascivious conduct with a child).  Aggravated sexual assault, as
  charged, consisted of: defendant, acting with intent, engaging in repeated
  and compelled sexual acts with a person.  See 13 V.S.A. §§ 3252,
  3253(a)(9). There is at least one element of each crime that is not a part
  of the other: sexual assault includes the elements of compulsion and
  engaging in a "sexual act," i.e., contact between certain body parts; (FN2)
  lewd and lascivious conduct contains neither of these elements.  Indeed,
  lewd and lascivious conduct does not necessarily require physical contact
  between the perpetrator and victim, see, e.g., State v. Johnson, 158 Vt.
  344, 348, 612 A.2d 1114, 1116 (1992) (upholding lewd and lascivious conduct
  conviction when defendant encouraged child to masturbate in the presence of
  others), though contact was a part of the charge in this case.  Further,
  lewd and lascivious conduct includes the element of appealing to or
  gratifying one's sexual desires.  Though appealing to sexual desire may be
  often associated with sexual assault, such motive is not an element of that
  crime, and lewd and lascivious conduct may thus be distinguished on that
  basis.  See State v. Norton, 332 S.E.2d 531, 532-33 (S.C. 1985) (holding
  that reindictment for committing a lewd act upon a child after acquittal
  for sexual battery on a minor did not place defendant in double jeopardy
  because lewdness did not require sexual battery and lewdness requires
  intent of appealing to sexual desires of himself or child).  But see Meador
  v. State, 711 P.2d 852, 855-56 (Nev. 1985) (concluding lewdness had no
  element distinct from sexual assault, and was therefore a lesser-included
  offense, despite lewdness statute's requirement that person have intent of
  appealing to sexual desires), disapproved of by Talancon v. State, 721 P.2d 764, 768-69 (Nev. 1986).  Having found distinctions between the elements of
  sexual assault and lewd and lascivious conduct, we conclude under
  Blockburger that the Legislature intended to allow multiple convictions and
  punishments for the same conduct under these differently defined offenses.

                        II.  Sufficiency of Evidence

       ¶  12.  In reviewing the denial of a motion for acquittal, we look at
  evidence presented by the State, viewed in light most favorable to State
  and excluding modifying evidence, to determine whether evidence
  sufficiently and fairly supports findings of guilt beyond a reasonable
  doubt.  Grega, 168 Vt. at 380, 721 A.2d  at 457.  Defendant alleges that the
  evidence was insufficient in three respects: (1) A.H. did not make an
  in-court identification of defendant as the perpetrator of the sexual
  assaults and lewd and lascivious conduct; (2) the State did not prove that
  the mother was actually made afraid by defendant's threats; and (3) the
  State did not prove that the mother's testimony about a sexual encounter
  with defendant on A.H.'s bed was not truthful.
   
       ¶  13.  Viewing the evidence in the light most favorable to the
  State, the evidence was sufficient to support a finding that defendant was
  the man who committed the acts described by A.H.  In her testimony, A.H.
  described sexual acts perpetrated by a man she referred to as "Tim Wiley"
  while he lived with A.H. and her mother.  A.H. said that she thought of Tim
  Wiley as her "stepdad" and as her mother's "true boyfriend."  Subsequently,
  the mother testified to living in a series of apartments with A.H. and Tim
  Wiley.  The mother then made an in-court identification of defendant as the
  Tim Wiley with whom she and A.H. had lived.  Further, the police officer
  who took a DNA sample from defendant also made an in-court identification
  of defendant as the man who had supplied the DNA sample.  This DNA sample
  was compared to a seminal stain on A.H.'s bedding, and the provider of the
  sample was found to be a likely source of the seminal stain.  These two
  independent in-court identifications of defendant-as the man with whom A.H.
  and her mother had lived and the likely source of the seminal fluid stain
  on A.H.'s bedding-were more than sufficient to support a finding that
  defendant was the man who committed the acts described by A.H.  We thus
  find no error in the court's denial of defendant's motion for acquittal on
  that basis.

       ¶  14.  The obstruction of justice statute prohibits various acts,
  described in numerous clauses, intended to interfere with legal
  proceedings.  Two of these prohibitions are relevant to this discussion:

    Whoever corruptly, or by threats or force, or by any threatening
    letter or communication, intimidates or impedes any witness . . .
    or corruptly or by threats or force or by any threatening letter
    or communication, obstructs or impedes, or endeavors to obstruct
    or impede the due administration of justice, shall be imprisoned
    not more than five years or fined not more than $5,000.00 or both.

  13 V.S.A. § 3015.  Defendant was charged under the final, omnibus clause
  for both his threats against the mother and his suggestion to her that she
  lie under oath.  Defendant contends that the State needed to prove that the
  mother was actually made afraid by defendant's threats.  In support of this
  argument, defendant cites State v. Ashley in which we stated that
  obstruction of justice by threatening a witness requires "only that the
  witness be made afraid or deterred, not that the witness be both."  161 Vt.
  65, 71, 632 A.2d 1368, 1372 (1993).  Defendant argues that the evidence
  here indicates that the witness was neither deterred-she did, in fact,
  testify-nor frightened in light of her testimony that she never felt
  threatened by anything defendant said.  Therefore, according to defendant,
  under Ashley the State did not prove all elements of the offense. 
   
       ¶  15.  Ashley construed the first clause of the statute which
  provides that a threat is criminal if it "intimidates or impedes any
  witness."  Defendant, however, was charged under the omnibus clause with
  "endeavor[ing] to obstruct or impede the due administration of justice." 
  With inclusion of the term "endeavor," this clause, like its nearly
  identical federal counterpart,  does not require that a defendant succeed
  in his attempt to interfere with the due administration of justice; a mere
  "endeavor" suffices.  United States v. Aguilar, 515 U.S. 593, 599 (1995). 
  The State was thus not required to prove that the witness was deterred or
  made afraid by defendant's threats, only that he attempted to influence her
  actions.  The evidence, viewed in the light most favorable to the State,
  indicates that defendant told the witness that if his case went to trial he
  would disclose information that would cause her to lose custody of her
  daughter.  Defendant further asked the witness, A.H.'s mother, to convince
  her daughter to drop the allegations of sexual assault.  This evidence
  sufficiently and fairly supports a finding that defendant attempted to
  obstruct or impede the due administration of justice.
   
       ¶  16.  Finally, defendant maintains that the evidence was also
  insufficient to support conviction for the other count of obstruction of
  justice, regarding defendant's prompting of the mother to recall a sexual
  encounter on A.H.'s bed, when the State did not prove that the encounter
  did not actually occur.  Defendant's conclusion, however, does not
  necessarily follow from the alleged absence of proof that the encounter did
  not occur.  First, the fact finder could reasonably find the mother's
  recollection of the encounter incredible in light of the recorded
  conversation with defendant in which she repeatedly states that she did not
  remember the encounter and her denial while testifying that she had any
  help in remembering the incident.  We afford great deference to the fact
  finder in weighing the credibility of witnesses.  Havill v. Woodstock
  Soapstone Co., 2004 VT 73, ¶ 21, 177 Vt. 297, 865 A.2d 335.  The court
  could thus have concluded that the story was fabricated by defendant and
  repeated by the witness at his behest.  Second, defendant specifically
  asked the mother to lie under oath when, after she insisted to him she did
  not remember a sexual encounter on A.H.'s bed, defendant told her to say
  that she did remember it, if asked.  Encouraging a potential witness to lie
  under oath fits within the charged crime of "corruptly endeavor[ing] to
  obstruct or impede the due administration of justice."  See United States
  v. Wesley, 748 F.2d 962, 964 (5th Cir. 1984) (affirming conviction under
  federal omnibus clause for "urging and advising" a witness to testify
  falsely).  We therefore find the evidence sufficient to support the
  conviction.

       Affirmed.


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  "Sexual act" is defined for purposes of sexual assault crimes as "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. § 3251(1).

FN2.  See note 1, supra, for the definition of "sexual act." 

FN3.  The federal obstruction-of-justice statute's omnibus clause provides:
  "Whoever . . . corruptly or by threats or force, or by any threatening
  letter or communication, influences, obstructs, or impedes, or endeavors to
  influence, obstruct, or impede, the due administration of justice, shall be
  punished as provided . . . ."  18 U.S.C. § 1503(a).