State v. Church

State v. Church  (96-351); 167 Vt. 604; 708 A.2d 1341

[Filed 21-Jan-1998]



                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-351

                             DECEMBER TERM, 1997


State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont,
                                }     Unit No. 2, Franklin Circuit
Lynn Church                     }
                                }     DOCKET NO. 360-3-95FrCr


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


       Defendant was charged with one count of sexual assault on a minor (13
  V.S.A. § 3252(b)(1)) and one count of lewd and lascivious contact with a
  minor (13 V.S.A. § 2602) for acts alleged to have occurred with his
  daughter.  He appeals from the jury's guilty verdict, and we affirm.

       The acts in question were alleged to have occurred with defendant's
  daughter S.C., when she was between twelve and fourteen years old.  Prior
  to trial, the court granted defendant's motion to suppress evidence of
  defendant's alleged sexual acts with another daughter, J.C.

       Defendant raises three issues on appeal.  Defendant argues first that
  the information was insufficient to charge the offense because it omitted
  an essential element of the offense -- the words "with the intent of
  arousing, appealing to, or gratifying the lust, passions or sexual desires
  of such person or of such child."  However, the information was amended
  during trial in order to add the missing element, as allowed by V.R.Cr.P.
  7(d) "[i]f no additional or different offense is charged and if substantial
  rights of the defendant are not prejudiced."  The amendment in question did
  not result in an additional or different offense being charged.  Since
  defendant's brief does not acknowledge the amended information, defendant
  has not pointed to substantial rights that might have been prejudiced by
  the amendment.  Nor does the record suggest that any such rights were
  involved.  Defendant was aware of the nature of the charges and has never
  argued the contrary.

       Defendant next argues that the testimony of Carolyn Belleview should
  not have been admitted, since it did not qualify as a prior consistent
  statement under V.R.E. 801(d)(1)(B), both because the statement by the
  witness was not "shown to have been made prior to the time that the
  supposed motive to falsify arose," citing State v. Carter, 164 Vt. 545,
  549, 674 A.2d 1258, 1262 (1996), and because evidence should not be
  admitted under V.R.E. 801(d)(1)(B) to enhance the credibility of the
  witness.

       During its case, defendant presented testimony that S.C. had recanted
  her allegations against defendant during a conversation with an
  acquaintance.  After the defense closed its case, the State offered the
  testimony of Carolyn Belleview, who would testify that S.C. told her that
  she had been sexually molested by her father.  This testimony was offered
  to rehabilitate S.C. as a witness following testimony about S.C.'s alleged
  recantation.  The court allowed the Belleview testimony as "relevant toward
  the credibility of the witness as a balance to the

 

  inconsistency."

       Defendant argues that the Belleview testimony did not fit the
  requirements of V.R.E. 801(d)(1)(B), since the statements made by S.C. to
  the witness cannot be said to have been made "prior to the time that the
  motive to falsify arose" and hence fail under that Rule.  We need not
  resolve this issue.  S.C.'s statements to the witness were not offered as
  non-hearsay under the rule, they were offered and admitted to rehabilitate
  the witness.

       V.R.E. 801(d)(1)(B) does not govern the admissibility of prior
  consistent statements to rehabilitate a witness; it "merely allow[s] a
  certain subset of these statements to be used as substantive evidence of
  the truth of the matter asserted."  United States v. Ellis, 121 F.3d 908,
  919 (4th Cir. 1997), cert. denied, No. 97-705, 1998 WL 6135 (U.S. Jan. 12,
  1998); see also United States v. Rubin, 609 F.2d 51, 69 (2d Cir. 1979)
  (Friendly, J., concurring) (Fed. R. Evid. 801(d)(1)(b) "simply does not
  deal with the extent to which prior consistent statements may be used for
  rehabilitation").  Accordingly, defendant's assertion that V.R.E.
  801(d)(1)(B) provides the only possible basis for allowing hearsay evidence
  to bolster a witness's credibility is incorrect.

       When offered to rehabilitate a witness, a prior consistent statement
  is admissible when it has "`some rebutting force beyond the mere fact that
  the witness has repeated on a prior occasion a statement consistent with
  his trial testimony.'"  Ellis, 121 F.3d  at 920.  Admitting such statements
  allows the jury to determine to what extent the impeaching statements were
  inconsistent with the remainder of the witness's testimony, or if they were
  inconsistent at all. See id.  This rationale applies with particular force
  in cases where the complaining witness is a child and where the issue of
  credibility is especially acute.  In the instant case, the trial court
  allowed brief testimony that S.C. had disclosed acts of sexual molestation
  by her father, following testimony that tended to impeach her credibility. 
  Moreover, S.C. herself had raised the topic of her conversation with
  witness Belleview, and the latter's testimony did not come as a surprise to
  the jury.  There was no error.

       Finally, defendant argues that the court erred in denying his mistrial
  motion, based on the testimony of defendant's wife in which another
  daughter was mentioned.  Defendant argues that the State deliberately
  elicited this evidence.  There is no indication that the state did so, and
  more importantly, no showing of prejudice.

       During trial defendant's wife testified as to statements defendant had
  made to her, including a statement by defendant that he did not touch his
  other daughter.  Defendant argues that the very mention of his other
  daughter created the impression that he had been accused of molesting this
  daughter as well as S.C.  The court regarded the connection between
  defendant's statement and the possibility of an additional accusation as
  tenuous.  Defendant declined a cautionary instruction, apparently heeding
  the court's warning that such instruction might suggest the possibility of
  additional charges, when the testimony by itself might not do so.  It would
  have been natural for a father accused of molesting one daughter to try to
  assure his wife that he did not molest another daughter, irrespective of
  any accusations with respect to the second daughter.  The more important
  point is that the brief, single, and oblique reference to J.C. was at most
  ambiguous, and the court was in the best position to gauge its impact on
  the jury.  The court was well within its discretion in denying the mistrial
  motion.

 


       Affirmed.

                              BY THE COURT:



                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn R. Skoglund, Associate Justice