State v. Perrillo

STATE_V_PERRILLO.92-202; 162 Vt. 566; 649 A.2d 1031


 [Filed 23-Sep-1994]

 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.


                                 No. 92-202


 State of Vermont                     Supreme Court

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


 Joseph Perrillo                      February Term, 1994


 Theodore S. Mandeville, Jr., J.

 Kevin R. Klamm, Rutland County Deputy State's Attorney, Rutland, for
   plaintiff-appellee

 Robert Appel, Defender General, and Henry Hinton, Appellate Defender,
   Montpelier, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      MORSE, J.   Defendant appeals his conviction for two counts of lewd and
 lascivious conduct with a child, 13 V.S.A. { 2602 (maximum penalty five
 years). Defendant claims that the evidence supported a conviction on no more
 than one count.  He claims the sentence of five to ten years (2 1/2 to 5
 years consecutive on each count) doubled the allowable penalty intended by
 the legislature for the crime.   He further asserts that the trial court
 erred in (1) admitting evidence of sexual misconduct with another child, (2)
 instructing the jury to ignore part of defendant's explanation for leaving
 Vermont during his pretrial release, and (3) admitting hearsay to buttress
 the credibility of the victim.  We reverse and remand for a new trial.

 
                                     I.
      At the time of the incident, the victim, a 12-year-old girl, and her
 friend were spending the night on the living room floor at the residence of
 the friend's mother.  Defendant was staying overnight on the couch in the
 same room.  The victim testified that defendant
           picked me up and brought me onto the couch, and molested
           me. . . . [F]irst he rubbed my stomach, and then he went
           up and around my chest area, and then he went down my
           pants, . . . [a]nd then he took his hand out of my pants
           and then he just touched me outside of my pants.  [He
           touched me underneath my pants] [i]n my vaginal area.


 According to the victim, the incident lasted "about a few minutes or so."
      Count one charged defendant with violation of 13 V.S.A. { 2602 by
 placing his hand inside the victim's pants and rubbing his hand on her
 vulva.  Count two charged a violation of the same statute by putting his
 hand inside the victim's shirt and rubbing her chest.  Before trial
 defendant moved to dismiss the second count of lewd and lascivious conduct.
 He claimed that the evidence viewed in a light most favorable to the State
 did not support two crimes.  The trial court denied the motion.
      The allowable number of counts under a criminal statute is determined
 by legislative intent.  Section 2602 prohibits:
           [A]ny 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 . . . .

 Because a single episode of sexual misconduct ordinarily involves the
 wrongdoer touching the victim more than once, Harrell v. State, 277 N.W.2d 462, 473 (Wis. Ct. App. 1979) (an episode of sexually assaultive behavior
 usually involves multiple invasions of the intimate parts of the victim's

 

 body), we do not think the legislature intended to increase the potential
 sentence for these crimes exponentially depending on the number of touches
 involved in a single episode of sexual abuse.
       Sexual abuse as forbidden by { 2602 is an aggravated form of battery
 with heightened penalties due to sexual contact with a child. In battery
 cases, multiple blows during one fight or attack usually constitute only a
 single offense.  See People v. Berner, 600 P.2d 112, 113 (Colo. Ct. App.
 1979) (two blows struck in attack were not separate events but were part of
 single criminal episode resulting from single impulse); see also People v.
 Wilson, 417 N.E.2d 146, 147 (Ill. App. Ct. 1981) (finding "inane" the
 argument that each blow constituted a separate crime).
      Under the State's view, however, the only limit to the number of counts
 in a case like this is the amount of detail the victim remembers.  If we
 approve the multiple charging in this case, it is readily apparent that the
 distinction between the potential for enough and too much punishment under
 the statute is impossible to reasonably define. The better approach, con-
 sistent with legislative intent, is to view the episode as the offense.
         The facts here support conviction for only one crime.
                                     II.
      The trial court allowed, over defendant's objection, introduction of
 evidence of an allegation of defendant's touching another minor one month
 prior to the charged act.  At trial, the witness testified that defendant
 had rubbed his hand "around [her] chest and . . . on [her] back" at night
 while she was asleep in the same bed as defendant, who had been spending the
 night at the child's mother's home.  The trial court ruled the evidence
 relevant to show a common scheme or plan.  See State v. Winter, No. 93-130,

 

 slip op. at ___ (Vt. June 1994) (evidence of bad act must be relevant to a
 "legitimate issue" other than defendant's propensity to commit the crime
 charged); V.R.E. 404(b) (evidence of other acts not admissible to prove
 character of person to show that he acted in conformity therewith).
      We have recently written at length on the use of uncharged sexual
 misconduct.  See State v. Winter, slip op. at 5-7.  The conduct here does
 not remotely approach our test for admissibility.  Nor is this evidence
 admissible for other reasons contemplated by Rule 404(b): the act charged is
 not part of a continuous series of sexual acts with one victim, State v.
 Forbes, ___ Vt. ___, ___, 640 A.2d 13, 16 (1993) (evidence of incest
 admissible to supply context for charged act), or so distinctive and unique
 as to constitute the defendant's "signature," State v. Bruyette, 158 Vt. 21,
 27-30, 604 A.2d 1270, 1272-74 (1992) (prior idiosyncratic sexual activity
 constituted "signature" admissible to show identity).  The court erred in
 admitting this evidence.  We cannot say the error was harmless.
                                   III.
      The State sought to raise an inference of defendant's consciousness of
 guilt by presenting evidence to the jury that defendant fled to Arkansas
 after being charged.  Defendant's lawyer, a public defender, had been
 notified of a trial date but was unable to contact defendant, who failed to
 appear for trial.  Defendant was arrested in Arkansas and brought back to
 Vermont.  Defendant explained his absence by testifying that, because his
 public defender was overworked and too busy, he left Vermont to earn money
 to hire a lawyer, not to escape.  Defendant also testified that before
 leaving the state he had been offered a plea agreement in which he would not
 serve any jail time, but he turned it down because he wanted his innocence

 

 established.  The State argued the trip to Arkansas indicated a guilty mind.
 Defendant argued he had no reason to escape given the fact that the State,
 as demonstrated by its plea bargaining posture, was not seeking to put him
 in jail.
      After final argument, the court sua sponte instructed the jury:
           You've also heard testimony -- testimony about a plea
           offer, a plea offer presented to the defendant.  You are
           advised that no such offer is meaningful unless and
           until it is approved by the Court.  Accordingly, such
           testimony is not relevant to any issue submitted to you
           for your consideration.

 Defendant objected to this instruction.
      The admission of flight evidence itself is problematic, although there
 is a lengthy history allowing the admission of this evidence to show
 consciousness of guilt.  See, e.g., Allen v. United States, 164 U.S. 492,
 499 (1896) ("[T]he law is entirely well settled that the flight of the
 accused is competent evidence against him as having a tendency to establish
 his guilt.").  There is, however, a long history of questioning the
 probative value of "flight" evidence, which is often equivocal.  See, e.g.,
 Alberty v. United States, 162 U.S. 499, 511 (1896) ("[I]t is a matter of
 common knowledge that men who are entirely innocent do sometimes fly from
 the scene of a crime through fear of being apprehended as the guilty
 parties, or from an unwillingness to appear as witnesses."); see also Wong
 Sun v. United States, 371 U.S. 471, 483 n.10 (1963) ("[W]e have consistently
 doubted the probative value in criminal trials of evidence that the accused
 fled the scene of an actual or supposed crime.").
      The probative value of evidence of flight as circumstantial evidence of
 guilt depends upon the confidence placed on four inferential steps: "from
 defendant's behavior to flight[,] . . . from flight to consciousness of

 

 guilt[,] . . . from consciousness of guilt to consciousness of guilt
 concerning the crime charged[,] . . . from consciousness of guilt concerning
 the crime charged to actual guilt of the crime charged."   United States v.
 Myers, 550 F.2d 1036, 1049 (5th Cir. 1977).  Common experience does not
 necessarily support the second and fourth inferences, making evidence of
 flight or related conduct "only marginally probative as to the ultimate
 issue of guilt or innocence." Id. (quoting United States v. Robinson, 475 F.2d 376, 384 (D.C. Cir. 1973)).  In this case, the first inference --
 defendant's trip indicated flight -- was refuted by defendant with evidence
 showing that his departure was for reasons consistent with his innocence.
 Defendant's evidence was critical because his explanation refuted
 consciousness of guilt through all the inferential steps.
      When the prosecution presents evidence of flight for the jury to infer
 consciousness of guilt, the defendant should in fairness be afforded the
 opportunity to explain why his absence was consistent with his innocence.
 See 1 Torcia, Wharton's Criminal Evidence { 214 (13th ed. 1972).  Although
 the court's instruction may have been a "correct" statement of law governing
 the binding effect of a plea, V.R.Cr.P. 11(e)(2) (plea agreement not binding
 upon court unless court accepts plea agreement), the binding effect of a
 plea was not at issue.  The proposed plea agreement was relevant evidence
 offered to refute the inference that defendant's flight was motivated by
 consciousness of guilt.  The court's gratuitous instruction denied
 defendant that opportunity, and may have given the impression that only the
 State's argument was believable.  Therefore, the instruction should not
 have been given.

 

     We need not reach defendant's additional argument that the court
 erroneously failed to instruct the jury that it must find guilt beyond a
 reasonable doubt upon consideration of all the evidence, and not simply on
 consideration of flight evidence.  Defendant did not object to the omission.
 V.R.Cr.P. 52(b); State v. Gilman, 145 Vt. 84, 88, 483 A.2d 598, 600 (1984)
 (failure to raise error below precludes appellate review unless error is
 plain).
                                     IV.
      The court allowed a witness to testify that shortly after the event the
 victim told her that defendant had "molested her."  Defendant argues that
 the court erred when it allowed the other child's hearsay testimony to
 buttress the victim's testimony.  The testimony was not error because it was
 introduced to rebut defendant's claim that the victim failed to report the
 incident to anyone else for three months and recently fabricated her story.
 V.R.E. 801(d)(1)(B).
      Reversed and remanded.



                                    FOR THE COURT:


                                    ____________________________________
                                    Associate Justice