State v. Cameron

State v. Cameron  (97-046); 168 Vt. 421; 721 A.2d 493

[Filed 16-Oct-1998)


       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. 97-046


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      Bennington District Court

Richard G. Cameron                           March Term, 1998



Ellen Holmes Maloney, J.

       William H. Sorrell, Attorney General, and David Tartter, Assistant
  Attorney General, Montpelier, for Plaintiff-Appellee.

       Charles S. Martin of Martin & Associates, Barre, for
  Defendant-Appellant.


PRESENT:  Dooley, Morse, Johnson and Skoglund, JJ.


       JOHNSON, J.   Defendant appeals jury convictions resulting from
  charges that he sexually assaulted and molested his former girlfriend's two
  young children.  He argues that (1) he was  entitled to a judgment of
  acquittal with respect to the charges concerning one of the children
  because only hearsay evidence supported those charges; (2) the trial
  court's admission of  hearsay testimony concerning statements that the
  children had made to others, based on its conclusion that the children were
  available to testify through their videotaped trial testimony, violated his
  right to confront adverse witnesses; (3) the court erred in excluding
  defense witnesses who would have presented testimony suggesting that the
  children may have been abused by their stepfather rather than defendant;
  and (4) the court lacked the authority to reconvene and increase
  defendant's sentence on  its own motion two days after having originally
  pronounced sentence.  We reject each of these arguments and, therefore,
  affirm the convictions and sentence.

       In the spring of 1990, defendant moved in with a woman and her two
  children, a boy

 

  born in March 1987, A.V., and a girl born in May 1988, S.T.  In July 1991,
  defendant and the woman had a child together.  The couple separated in the
  summer of 1993, and the woman moved in with another man, whom she married
  the following year.  In December 1993, as a result of statements the
  children made to their mother and stepfather indicating that defendant had
  sexually abused them, an employee of the Department of Social and
  Rehabilitative Services (SRS) interviewed the children.  A second interview
  was held in April 1994.  Both interviews were videotaped.

       In November 1994, the State filed a four-count information charging
  defendant with three counts of aggravated sexual assault, in violation of
  13 V.S.A. § 3253(a)(8), and one count of lewd and lascivious conduct with a
  child, in violation of 13 V.S.A. § 2602.  The State alleged that between
  July 1992 and May 1993 defendant engaged in lewd and lascivious conduct
  with S.T. by making contact between his hand and her vulva, and further
  sexually assaulted both children by making contact between his penis and
  A.V.'s mouth, S.T.'s mouth, and S.T.'s vagina.  The  children testified at
  trial through previously videotaped testimony taken pursuant to V.R.E. 807. 
  The State's evidence at  trial consisted mainly of the children's
  videotaped trial  testimony and the testimony of other State's witnesses --
  the  children's mother, their grandmother, their therapist, and the  SRS
  interviewer -- who repeated statements that the children had made to them. 
  The latter testimony was admitted under V.R.E. 804a, the hearsay exception
  relating to statements made by children who are the putative victims of sex
  offenses.  The jury found defendant guilty on all counts, and the court
  sentenced him to ten-to-thirty-five years on each of the aggravated sexual
  assault convictions and four-to-five years on the lewd and lascivious
  conduct conviction, all to be served concurrently.

                                     I.

       Defendant first argues that S.T.'s trial testimony failed  to support
  convictions on two of the counts against him -- hand-to-vulva

 

  and penis-to-mouth contact -- and that the State could not rely solely upon
  hearsay testimony to support those convictions.  As for the hand-to-vulva
  contact, we reject defendant's argument that because S.T. indicated that
  she was  wearing clothes when the contact occurred, her testimony could not
  support the State's charge of lewd and lascivious conduct  with a child. 
  Lewd and lascivious conduct does not require direct contact between
  particular body parts. Cf. In re P.M., 156 Vt. 303, 305, 592 A.2d 862, 862
  (1991) (affirming finding of delinquency based on juvenile having committed
  lewd and lascivious conduct by rubbing genital areas of his partially
  clothed body against genital areas of child's partially clothed  body). 
  S.T.'s videotaped trial testimony that defendant rubbed  her between the
  legs "in the front" where "I go to the bathroom" established the State's
  charge that defendant committed lewd and  lascivious conduct with a child
  by making contact between his hand and her vulva, notwithstanding her
  testimony that she was wearing clothes at the time of the incident.

       As for the charge alleging penis-to-mouth contact between defendant
  and S.T., the State apparently concedes that S.T.'s  trial testimony does
  not support the verdict on this charge. Therefore, we address the second
  part of defendant's argument --  that his conviction on this charge was
  supported solely by hearsay testimony, in violation of State v. Robar, 157
  Vt. 387, 601 A.2d 1376 (1991).  In Robar, we held that the State cannot
  meet its burden of proving guilt beyond a reasonable doubt "if  the sole
  evidence upon which conviction is based is past recollection recorded or a
  prior inconsistent statement, unless the prior statement meets specific
  standards of reliability."   Id. at 395, 601 A.2d  at 1380 (emphasis added). 
  We reversed the defendant's conviction because the only evidence
  identifying him  as the perpetrator was the inquest testimony of one of the
  State's witnesses, who testified at trial that she had no memory  of the
  inquest or the events surrounding it.  See id. at 395-96, 601 A.2d  at 1380. 
  We concluded that the inquest testimony was not reliable because (1) it was
  given six months after the event itself; (2) it was given as part of a deal
  involving potential charges against the witness, who incorrectly believed
  that the defendant had confessed; and (3) no information was available
  concerning the circumstances or date of the witness's original  statement
  to police.  See id.

       In later cases, however, we found prior statements sufficiently
  reliable to support


 

  convictions. In State v. West, 164 Vt. 192, 667 A.2d 540 (1995), for
  example, the defendant argued that the only evidence identifying him as the
  perpetrator was the complainant's hearsay  statement admitted under the
  excited utterance exception.  We distinguished that case from Robar, noting
  that the hearsay statement was corroborated by other evidence, was made
  only minutes after the assault, and had not been coerced.  See id. at
  197-98, 667 A.2d  at 543.  Similarly, in State v. Marcy, 165 Vt. 89, 98-99,
  680 A.2d 76, 79 (1996), we concluded that the assault victim's prior
  statement, which had been admitted as a past  recollection recorded, was
  sufficiently reliable to support the defendant's conviction because the
  tape-recorded statement was  bolstered by corroborating evidence, was given
  the day after the assault, was consistent with an earlier statement given
  to the same police officer, and did not appear to be coerced.  We also
  determined that defense counsel had had an adequate opportunity to
  cross-examine the victim concerning her prior statement.  See id.

       Here, defendant makes no argument as to either the reliability of the
  statements that the SRS interviewer testified S.T. had made to her
  concerning penis-to-mouth contact or the opportunity defense counsel had to
  cross-examine S.T. concerning those statements during the children's
  videotaped trial  testimony.  We conclude that the statements bear
  sufficient indicia of reliability to support conviction on the charge
  alleging penis-to-mouth contact between defendant and S.T.  The SRS
  interview in which S.T. described such contact took place one to two years
  after the alleged incident but shortly after her initial disclosure of the
  incident to her mother and therapist. Having viewed the videotape of the
  interview, the district court found that the SRS employee interviewed the
  children separately in a highly professional manner, without suggesting
  answers or content; the children's statements were consistent with 
  statements they had made to their mother, grandmother, and therapist; and
  the children responded in age-appropriate language, which suggested that
  they had not been coached or coerced.  Further, the alleged improper
  contact S.T. described during the SRS interview was corroborated at that
  time by her gestures and demonstrations with anatomically correct dolls.
  Finally, defense counsel had an

 

  adequate opportunity during S.T.'s videotaped trial testimony to 
  cross-examine her concerning her failure to recollect the penis-to-mouth
  contact that she had described to the SRS interviewer.  We conclude that
  the State's evidence was  sufficient to fairly and reasonably support
  defendant's guilt on  each count beyond a reasonable doubt.  See Robar, 157
  Vt. at 391, 601 A.2d  at 1378 (stating standard for determining sufficiency
  of evidence).

       We reject defendant's argument that hearsay statements of  child
  victims admitted under V.R.E. 804a were not intended to serve as direct
  evidence of guilt but only to corroborate other direct evidence of guilt. 
  In relevant part, V.R.E 804a(a) provides that the hearsay statements of a
  child who is the alleged victim of a sex offense are admissible if the
  court determines that the statements were not taken in preparation for a
  legal proceeding, the child is available to testify, and the statements
  provide substantial indicia of trustworthiness. In State v. Gallagher, 150
  Vt. 341, 346-47, 554 A.2d 221, 224-25 (1988), we stated that the
  Legislature intended V.R.E. 804a to allow hearsay statements of child
  sexual assault victims even when they are available to testify because of
  the likelihood that the intimidation of the process would render children
  unable to deliver effective live testimony or would cause them to recant
  earlier statements about having been sexually abused. If the Legislature
  intended the rule to apply in situations where child victims had recanted
  the abuse or were unable to repeat the facts of the abuse in court, then
  surely the rule must be allowed to support a conviction when the child's
  in-court testimony is  insufficient to establish the elements of the
  offense. Otherwise, the only time it would apply would be when it was
  needed least -- when the child was able to describe the abuse in court.

                                     II.

       As previously noted, for the hearsay statements of a child sexual
  assault victim to be admissible under V.R.E. 804a, the child must be
  "available to testify in court or under Rule 807." V.R.E. 804a(a)(3); see
  V.R.E. 804a(b) (upon motion of either party in criminal or delinquency
  proceeding, court shall require child to testify for state).  Here, rather
  than present

 

  live, in-court testimony, the children testified under V.R.E. 807, which
  allows videotaped or closed-circuit testimony by young children who are the
  alleged victims of specified sexual offenses.  Defendant contends that the
  court violated his constitutional right to confront adverse witnesses by
  allowing the children's videotaped testimony to satisfy the availability 
  requirement contained in V.R.E. 804a.  We disagree.

       There is a widely recognized preference for requiring face-to-face
  confrontation between a defendant and his accusers. See Maryland v. Craig,
  497 U.S. 836, 849 (1990); State v. Jarzbek, 529 A.2d 1245, 1250-51 (Conn.
  1987); see also State v. Roberts, 154 Vt. 59, 66, 574 A.2d 1248,  (1990)
  (confrontation clause provides two types of protections for criminal
  defendants: the right to face those who testify against him and the right
  to conduct cross-examination).  In addition to the belief that it is more
  difficult to lie about a person in the person's presence,  there is a
  strong symbolic purpose served by requiring the accuser to face the person
  being accused.  See Craig, 497 U.S. at 846-47; Coy v. Iowa, 487 U.S. 1012,
  1017 (1988) ("there is  something deep in human nature that regards
  face-to-face confrontation between accused and accuser `as essential to a
  trial in a criminal prosecution'") (quoting Pointer v. Texas, 380 U.S. 400, 404 (1965)).

       Nevertheless, face-to-face confrontation is not an "indispensable
  element" of the right to confront one's accusers.   Craig, 497 U.S.  at 847,
  849-50 (face-to-face confrontation "is  not the sine qua non of the
  confrontation right").  In upholding  the constitutionality of a Maryland
  statute permitting child sexual assault victims to testify by
  closed-circuit television outside the defendant's presence, the Court in
  Craig stressed  that "[t]he central concern of the Confrontation Clause is
  to ensure the reliability of evidence against a criminal defendant by
  subjecting it to rigorous testing in the context of an adversary proceeding
  before the trier of fact."  Id. at 845.  The Court concluded:

     Although we are mindful of the many subtle effects face-to-face
     confrontation may have on an adversary criminal proceeding, the
     presence of these other elements of confrontation -- oath, cross-


   

      examination, and observation of the witness' demeanor -- adequately
      ensures that the testimony is both reliable and subject to rigorous
      adversarial testing in a manner functionally equivalent to that accorded
      live, in-person testimony.

  Id. at 851; see Gallagher, 150 Vt. at 344, 554 A.2d  at 233 (crux of
  confrontation clause violation is lack of effective opportunity to
  cross-examine adverse witness).  Based on these considerations, the Court
  held that where necessary to protect a child witness from trauma that could
  affect the reliability of the child's testimony, states may apply
  procedures that do not  provide face-to-face confrontation between the
  child witness and the defendant, but that otherwise ensure the reliability
  of the testimony by requiring that it be given in an adversarial setting. 
  See Craig, 497 U.S.  at 857.

       Faced with the Craig decision, defendant does not contest the
  admissibility of the children's videotaped trial testimony in  this case,
  but rather asserts that the testimony cannot form the sole basis for the
  jury to examine the demeanor of the children in determining whether they
  were trustworthy when making statements to others.  We fail to grasp the
  reasoning behind this argument.  Defendant does not dispute the
  admissibility of the children's statements admitted under V.R.E. 804(a). 
  Nor does he  contend that he was not given a full opportunity to
  cross-examine the children concerning those statements at the time they
  gave their videotaped trial testimony.  Nor does he explain why the jury
  was less able to judge the credibility of the children through their
  videotaped trial testimony than if they had testified in court at trial or
  live through closed-circuit television.  See Commonwealth v. Willis, 716 S.W.2d 224, 228, 230 (Ky. 1986) (videotaped testimony is functional
  equivalent of in-court testimony; photographic or electronic presentation
  is not perfect as substitute for live testimony, but it will suffice
  because goal of providing view of witness's demeanor to jury is  still
  achieved); see also Jarzbek, 529 A.2d  at 1251-52 (considering that trial
  testimony of child witness was videotaped at hearing before trial judge in
  modified courtroom, and that defense counsel had full opportunity to
  cross-examine witness at hearing, videotaped testimony was functional
  equivalent of in-court

 

  testimony); State v. Thomas, 442 N.W.2d 10, 18-19 (Wis. 1989) (accord).

       The children's videotaped trial testimony was played for the  jury on
  a large-screen television placed directly in front of the jury box.  The
  jurors were able to view the children as closely as if they had testified
  in the courtroom and thus had the opportunity to judge the credibility of
  the children's trial testimony, including any responses to
  cross-examination concerning their prior statements made to others.  We
  conclude that the district court did not violate defendant's right to 
  confront witnesses against him by admitting the children's  statements to
  others under Rule 804a based, in part, on the children's availability to
  testify by videotape under Rule 807.(FN1)  Cf. In re C.K., 164 Vt. 462, 466,
  671 A.2d 1270, 1272-73 (1995) (no merit to father's argument that because
  court excluded  him from courtroom during child's testimony, child was not 
  available to testify within meaning of V.R.E. 804a(a)(3); for purposes of
  Rule 804a(a)(3), limited testimony does not equal unavailability).

                                    III.

       Next, defendant argues that the district court violated his
  constitutional right to present exculpatory evidence by excluding two
  witnesses offering testimony concerning sexual misconduct by the children's
  stepfather.  We find no error.

       On the third day of trial, defense counsel notified the State that he
  intended to call to the stand a previously unidentified witness.  That
  evening, the State deposed the potential witness and learned that he
  intended to testify that seven years earlier the children's stepfather had
  molested him.   The following day, after the State had rested its case,
  defense counsel announced that a second potential witness had approached
  him and stated that some time in 1994 he had seen the children's 
  stepfather masturbating while watching children play.  Defense counsel
  stated his intention to call both witnesses to demonstrate that the
  children's stepfather had committed 

 

  sexual offenses before and thus was a possible alternative perpetrator of
  the crimes alleged in this case.  The court excluded the testimony as
  untimely noticed and as irrelevant and unfairly prejudicial.

       The purpose of V.R.Cr.P. 16.1(c), which requires the disclosure of
  witnesses that the defendant intends to call at trial, is to provide the
  prosecution with an adequate opportunity to depose or interview prospective
  witnesses in preparation for trial.  See State v. Verrinder, 161 Vt. 250,
  255, 637 A.2d 1382, 1386 (1993).  The trial court has broad discretion to
  sanction violations of this rule, and may exclude witnesses altogether. See
  id.  Witness preclusion is justified when the defendant's right to offer
  exculpatory testimony is outweighed by considerations concerning the
  integrity of the adversary process, the interest in the fair and efficient
  administration of justice, and the potential prejudice to the
  truth-determining function of the trial process.  See State v. Edwards, 153
  Vt. 649, 649, 569 A.2d 1075, 1076 (1989) (mem.).

       Evidence tending to show that a third party committed a crime should
  be admitted if motive and opportunity are shown and there is also evidence
  to directly connect the third party to the offense charged.  See State v.
  Grega, 9 Vt. L.W. 85, 89 (1998); State v. Olsen, 165 Vt. 208, 213, 680 A.2d 107, 110 (1996); State v. Gilman, 158 Vt. 210, 214, 608 A.2d 660, 663
  (1992); see also Winfield v. United States, 676 A.2d 1, 5 (D.C. 1996)
  (requiring that proffered evidence demonstrate reasonable possibility that
  person other than defendant committed charged offense ensures exclusion of
  evidence that is too speculative with respect to third party's guilt or too
  removed in time and place from offense charged).  Here, assuming that the
  proffered evidence demonstrates motive and opportunity, it does not
  directly connect the stepfather to the offense charged.  Nor does it tend
  to negate defendant's guilt, even if we were to adopt the relaxed  standard
  set forth in United States v. Stevens and advocated by defendant.  See 935 F.2d 1380, 1404-05 (3d Cir. 1991) (defendant need only demonstrate that
  evidence of third party's crimes has  tendency to negate his own guilt and
  passes V.R.E. 403 balancing test); but see

 

  Grega, 9 Vt. L.W. at 89-90 (evidence implicating others is subject to rules
  of evidence, including 404(b)).  Certainly, it is not "signature" evidence,
  as defendant contends for the first time on appeal.  See id. at 90 (third
  party's inclination for  anal intercourse and violent tendencies were not
  enough to demonstrate criminal signature); State v. Bruyette, 158 Vt. 21,
  28, 604 A.2d 1270, 1273 (1992) (although prior acts of accused and charged
  acts need not be identical, they must possess common features that make it
  highly likely that unknown perpetrator and accused are same person).

       The children unambiguously identified defendant by name as the
  perpetrator.  Undisputed evidence concerning the circumstances and events
  surrounding the alleged incidents of abuse indicated that the abuse took
  place while defendant was living with the children's mother and before the
  stepfather moved  into the home.  The stepfather's mere proximity to the
  children  at a later time is insufficient to connect him to the crime or
  negate defendant's guilt.  Given the State's lack of an adequate
  opportunity to investigate the claims of witnesses whose testimony was not
  proffered until the middle of defendant's  trial, and the lack of probative
  value of the testimony in determining whether defendant was innocent or
  guilty of the charged offenses, the trial court did not abuse its
  discretion in refusing to allow the witnesses to testify.  See Grega, 9 Vt.
  L.W. at 90 (proffered evidence did not establish direct link between third
  persons and charged crime); Olsen, 165 Vt. at 213, 680 A.2d  at 110 (court
  did not err in excluding evidence that day care provider was subject of
  investigation into unsubstantiated child abuse involving another child);
  Gilman, 158 Vt. at 215, 608 A.2d  at 663 (proffered evidence that did not
  directly incriminate third party was likely only to confuse or mislead
  jury).

                                     IV.

       Finally, defendant argues that the trial court violated statutory law
  and his right to due process by revising an earlier-imposed sentence on its
  own motion without giving him an opportunity to respond.  We find no merit
  to this argument.

       At the end of the first sentencing hearing, held on January 21, 1997,
  the trial court

 

  pronounced sentence, and then recessed.  At that time, the court announced
  its intention to sentence defendant to four-to-five years for the
  lewd-and-lascivious-conduct conviction, to be served concurrently with
  ten-to-thirty-five-year terms, all but ten years suspended, for each of the
  three aggravated-sexual-assault convictions.  The suspended part of the
  sentence was to be served on probation with special conditions imposed. 
  Upon further reflection, shortly after recessing the January 21 hearing,
  the court decided to continue the sentencing hearing on January 23, 1997. 
  At that hearing, the court informed the parties that it had not signed any
  mittimus following the January 21 hearing, and that no judgment had been
  entered.  The court then imposed the same sentence as it had pronounced on
  January 21, except that no part of the sentence was suspended. The court
  made the change after realizing that its original sentence did not reflect
  its intent to ensure that defendant would undergo intensive sex-offender
  treatment while incarcerated.  Had the January 21 sentence gone into
  effect, defendant would have been released on probation following the
  expiration of the unsuspended part of the sentence even if he had refused
  treatment in prison.  In the court's view, defendant's rehabilitation and
  public safety required imposing a sentence that provided incentives for
  defendant to take part in a comprehensive and intensive treatment program
  while incarcerated rather than satisfy that requirement on an out-patient
  basis while on probation.

       Until 13 V.S.A. § 7042 was enacted, the general rule was that "a court
  does not have the power to modify a sentence after  the term of the court
  has expired and execution of sentence has begun, unless the sentence was
  somehow invalid or improperly imposed."  In re Shequin, 131 Vt. 111, 116,
  300 A.2d 536, 539  (1973).  Defendant contends that the trial court's sua
  sponte modification of his sentence did not fall within the exception to
  this general rule provided in § 7042(b) (within seven days of imposition of
  sentence, prosecution may file motion to modify sentence by setting forth
  reasons why sentence should be altered).  We conclude that the sentence did
  not need to be modified pursuant to the procedure set forth in § 7042(b)
  because the trial court had not signed the mittimus before January 23, and
  thus execution of the sentence

 

  had not begun.  See Miner v. Chater, 137 Vt. 330, 331, 403 A.2d 274, 275
  (1979) (noting that appellant began execution of his sentence following
  issuance of mittimus).  Accordingly, the court was free to modify its
  earlier pronouncement, which did not reflect its intent to ensure that
  defendant participate in a sex-offender treatment program while
  incarcerated.  Cf. State v. Breault, 162 Vt. 625, 626, 649 A.2d 515, 516
  (1994) (court had authority to reconsider transfer to juvenile court made
  upon mistaken belief that state did not oppose transfer); In re Waite, 140
  Vt. 628, 630, 443 A.2d 462, 463 (1982) (where judge had not yet issued
  order incorporating terms of stipulation for sentence reduction at time
  defendant's probation officer objected to  stipulation, judge acted
  properly in blotting out his signature on stipulation and denying sentence
  reconsideration following hearing; strong policy reasons support
  requirement of formal entry before decision matures into operative act, and
  court has undoubted right to alter entry to reflect its intended action).
  Further, the court expressly stated at the continued sentencing hearing why
  it had decided not to follow through on the probationary aspect of its
  original pronouncement of sentence, and defense counsel took advantage of
  his opportunity to argue on behalf of defendant against the revised
  sentence.  Thus, there was no due process violation.

       Affirmed.

                               FOR THE COURT:

                               _______________________________________
                               Associate Justice




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                                  Footnotes



FN1.  This Court has stated that "the Vermont confrontation clause of
  the Sixth Amendment to the federal Constitution."  State v. Sprague, 144
  Vt. 385, 390 n.2, 479 A.2d 128, 131 n.2 (1984).  Defendant has not argued
  that any stricter standard should apply under the Vermont Constitution.