State v. Voorheis

State v. Voorheis (2002-478); 176 Vt. 265; 844 A.2d 794

2004 VT 10

[Filed 13-Feb-2004]


       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.


                                 2004 VT 10

                                No. 2002-478


  State of Vermont	                         Supreme Court

                                                 On Appeal from
       v.	                                 District Court of Vermont,
                                                 Unit No. 2, Chittenden Circuit

  Patrick Voorheis	                         September Term, 2003


  Michael S. Kupersmith, J.

  Robert Simpson, Chittenden County State's Attorney, and Pamela Hall
    Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

  Karen R. Shingler, Burlington, for Defendant-Appellant.


  PRESENT:  Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and Allen, C.J.
            (Ret.), Specially Assigned


       ¶  1.  AMESTOY, C.J.   Defendant Patrick Voorheis appeals a jury
  conviction for attempting to promote a lewd performance by a child, in
  violation of 13 V.S.A. § 2822, and for inciting another to commit a felony
  in violation of 13 V.S.A. § 7.  Defendant claims that the trial court erred
  in (1) denying defendant's motion for a judgment of acquital; (2) denying
  motions for mistrial upon a State's witness and prosecutor comments
  relating to defendant's exercise of his right to remain silent; and (3)
  admitting hearsay evidence.  We affirm.
   
       ¶  2.  Defendant was involved in an extra-marital affair with Lori
  Delisle, a single mother who resided with her two children:
  nineteen-year-old Jacques and thirteen-year-old Jennifer.  Jennifer suffers
  from developmental disabilities and cognitive limitations, which make her
  function at the level of a much younger child.  At the time some of the
  relevant events occurred, Jacques's girlfriend, Beth Brandolino, lived in
  Ms. Delisle's residence as well.

       ¶  3.  Defendant and Ms. Delisle communicated often via e-mail and
  through internet chat, or "instant messaging."  Ms. Brandolino testified
  that Ms. Delisle had shown her pictures of Jennifer naked, in her
  underwear, and in black lingerie.  Ms. Delisle told her that she had sent
  defendant some of the pictures.  Ms. Delisle repeated to Ms. Brandolino
  defendant's comments about Jennifer's body, and stated that she had bought
  the lingerie and taken those pictures at his request.  Ms. Brandolino
  testified that she was present when Ms. Delisle sent the lingerie pictures
  to defendant, and was able to observe the "instant messaging" response from
  defendant.  Ms. Brandolino further testified that Ms. Delisle talked about
  defendant wanting to take Jennifer's virginity, and about having a
  "threesome" with Jennifer and defendant.  Ms. Brandolino testified that she
  saw a picture of defendant's penis that he had sent addressed to both
  Jennifer and Ms. Delisle. 

       ¶  4.  Ms. Brandolino testified that, shortly after moving into her
  own residence in May 2000, she learned from Jacques that defendant was
  alone with Jennifer.  She testified that she was concerned about Jennifer's
  safety, so she, Jacques and a friend, Sarah French, went to Ms. Delisle's
  residence.  Soon after they entered the house, Jennifer came out of her
  mother's bedroom.  When asked what was she doing there, Jennifer said that
  she and defendant were lying in bed, that he was rubbing her back and had
  told her she was beautiful and "a princess." She stated that they went to
  the bedroom at defendant's suggestion.  The child did not seem in distress.
   
       ¶  5.  Defendant was charged with use and attempted use of a child
  in a sexual performance in violation of 13 V.S.A. § 2822, and with
  incitement of another to commit a felony in violation of 13 V.S.A. § 7.  At
  trial, the State introduced evidence seized from Ms. Delisle's  home,
  including a computer system and discs which stored a number of photographs
  of Jennifer naked.  The computer forensic examination recovered text from
  "instant messaging" conversations between defendant and Ms. Delisle.  An
  expert witness testified for the State that "instant messaging" is not
  normally saved into a computer, and that to save it to floppy disks
  required a concerted effort.  The texts of the instant messaging contained
  very graphic and sexually explicit language.  In these conversations,
  defendant makes comments about Jennifer's appearance, suggests poses and
  requests more pictures.  Defendant and Ms. Delisle discuss a plan to let
  defendant have his own lewd photo shoot.  The plan involved finding a time
  when neither Jacques nor Ms. Brandolino would be present, and leaving
  Jennifer alone with defendant, which would allow him to groom the child's
  pubic's hair, costume, and pose the child in a manner that better displayed
  her genitals. 
   
       ¶  6.  Ms. Delisle was subpoenaed to testify.  At the time of
  defendant's trial, she had already been convicted of using her daughter in
  a sexual performance.  She stated that she had taken three nude photographs
  of Jennifer to educate Jennifer about her body, and that she sent them to
  defendant to get his advice on how to talk with Jennifer.  Ms. Delisle
  denied that defendant had suggested buying Jennifer lingerie and taking
  pictures.  She claimed she could not recall sending those pictures to
  defendant, or receiving defendant's naked photograph addressed to both her
  and Jennifer.  Ms. Delisle denied her comments regarding the pictures and
  defendant's sexual interest in Jennifer.  When asked about the chat
  messages saved in her computer, Ms. Delisle testified that she created a
  conversation in which defendant suggests giving Jennifer alcohol because
  she suspected that there were people using her computer without her
  permission and wanted to see if it would generate a response from them. 
  She also claimed that she had saved and edited other instant messages to
  put the defendant in a bad light.  Ms. Delisle asserted a lack of knowledge
  or recollection with respect to several relevant events.  

       ¶  7.  Defendant took the stand and denied having seen or known about
  the pictures until he was criminally charged.  He denied making the
  incriminating statements attributed to him, or having any feelings or
  sexual interest for the child.  Although he admitted that he was alone in
  the bedroom with Jennifer, he explained that he was using the telephone
  when she entered the room and that he merely put his arm around her.

       ¶  8.  At the close of the State's case, defendant sought dismissal of
  all charges for lack of sufficient evidence.  The trial court granted the
  motion as to the substantive offense of use of a child in a sexual
  performance, but allowed the case to go to the jury on the charges of
  inciting and attempt.  The jury returned a verdict of guilty on both
  charges.  Defendant's motion for a new trial was denied, and this appeal
  followed.

       ¶  9.  Defendant first claims that the trial court abused its
  discretion by not dismissing the charges of incitement and attempt for lack
  of sufficient evidence.  According to defendant, the only evidence
  presented was the "instant messaging" text, which was retrieved from Ms.
  Delisle's computer, and which Ms. Delisle claimed to have edited. 
  Defendant compares this case to State v. Durenleau, 163 Vt. 8, 652 A.2d 981
  (1994), arguing that an unsympathetic defendant was found guilty based upon
  the conjecture and speculation of a jury presented with inflammatory but
  "scant evidence."  We agree with the trial court that the evidence was
  sufficient to support both verdicts.
   
       ¶  10.  In reviewing the denial of a motion for acquittal, this Court
  views the evidence in the light most favorable to the State.  State v.
  Driscoll, 137 Vt. 89, 100, 400 A.2d 971, 978 (1979).   The sole issue is
  whether that evidence sufficiently and fairly supports a finding of guilt
  beyond a reasonable doubt.  State v. Griswold, 172 Vt. 443, 448, 782 A.2d 1144, 1148 (2001).

       ¶  11.  The charge of inciting another to commit a felony, 13 V.S.A. §
  7, requires the State show that the defendant endeavored "to incite,
  procure, or hire another person to commit a felony, though a felony is not
  actually committed as a result of such inciting, hiring, or procuring." 
  The captured instant messaging text offered substantial evidence of
  defendant's requests to Ms. Delisle to pose her child and take additional
  pictures for his viewing.  The text also contained ample evidence that he
  had solicited Ms. Delisle's consent to carry on his own lewd photo session. 
  Ms. Brandolino's testimony was consistent with this evidence.  There was
  sufficient evidence for a jury to reasonably conclude that defendant had
  incited Ms. Delisle to use her daughter in a sexual performance in
  violation of 13 V.S.A. §2822, and/or to consent to her daughter's
  participation in a sexual performance violation in violation of 13 V.S.A.
  §2823.  Either act is a felony.
   
       ¶  12.  The guilty verdict on the charge of attempt is also
  fairly supported by the evidence.   The State was required to show that
  defendant intended to use a child in a sexual performance, and that he
  committed an overt act designed to carry out that intent.  See State v.
  McGee, 163 Vt. 162, 165, 655 A.2d 729, 732 (1995).  "The act must advance
  the actor's conduct beyond mere intent, and reach far enough toward
  accomplishing 'the desired result to amount to the commencement of the
  consummation.'"  Id. (quoting State v. Boutin, 133 Vt. 531, 533, 346 A.2d 531, 532 (1975)).  Here, the jury could reasonably infer defendant's intent
  to commit the charged offense from his electronic conversations with Ms.
  Delisle planning the photo shoot.  The State's evidence of defendant's
  overt act designed to carry out his intent included testimony that
  defendant was left alone in the house with Jennifer, just as discussed in
  the instant messaging, and that he took the child to her mother's bedroom. 
  The State presented evidence of a digital camera seized in Ms. Delisle's
  bedroom.  Finally, the jury heard testimony that defendant and the child
  were lying in bed when Ms. Brandolino and her companions arrived, and that
  defendant was rubbing the child's back and flattering her.  Viewing that
  evidence in the light most favorable to the State, the prosecution provided
  the jury with ample evidence from which it could reasonably conclude that
  defendant was attempting to use a child in a sexual performance in
  violation of 13 V.S.A. § 2822.

       ¶  13.  In arguing that the evidence is insufficient to support the
  findings, defendant's reliance on Durenleau is entirely misplaced.  In that
  case, there was only a "meager evidentiary record of defendant's
  involvement in her husband's death."  Durenleau, 163 Vt. at 14, 652 A.2d  at
  984.  Here, the retrieved electronic conversations between defendant and
  Ms. Delisle, together with witness testimony, offered ample evidence to
  support the jury's findings.  Defendant argues that the electronic text is
  "meager evidence" of guilt, since the text was "admittedly doctored and
  edited."  The jury, however, could find this recovered correspondence
  reliable and choose to disbelieve Ms. Delisle's claim that she had
  manipulated its contents.  This is not a question of sufficiency of the
  evidence but rather of its credibility and, as such, it falls entirely
  within the jury's province.  See State v. Norton, 134 Vt. 100, 103, 353 A.2d 324, 326 (1976) (credibility of witness and weight given to their
  testimony is the sole province of the jury). 

       ¶  14.  Defendant next argues that the court erred in denying his
  motions for a mistrial following the answer of a State witness, and
  following a prosecution question to defendant during cross-examination. 
  Defendant asserts that each represent an unconstitutional comment upon his
  invocation of his right to remain silent.  
   
       ¶  15.  Once a suspect is taken into custody and given the Miranda
  warnings, his silence cannot be used against him at trial.  State v. Byrne,
  149 Vt. 257, 262, 542 A.2d. 667, 670 (1988).  The use of a defendant's
  post-Miranda silence for impeachment purposes is "fundamentally unfair" and
  a violation of the Due Process Clause.  Doyle v. Ohio, 426 U.S. 610, 619
  (1976).  If the prosecution were allowed to use a defendant's silence to
  undermine his defense, the defendant would be penalized for exercising his
  constitutional right to silence.  See State v. Percy, 149 Vt. 623, 627, 548 A.2d 408, 410 (1988).  

       ¶  16.  Defendant's first assertion of error relates to defendant's
  claim that a police officer testifying for the State impermissibly
  commented that defendant did not want to give a statement.  The officer's
  statement came in direct testimony when he was asked if he had any
  conversation with defendant when defendant was being transported to the
  arraignment.  The officer testified: "I had no intentions to speak with him
  as he didn't want to give a statement in any way.  He initiated a
  conversation."

       ¶  17.  Defendant's second assertion of error arises from his claim
  that the prosecutor's question to defendant during cross examination: "Is
  this the first time you ever told anybody that?"was also an impermissible
  comment on defendant's right to remain silent.  The prosecutor's question
  to defendant followed defendant's statement on cross examination that,
  after their respective arraignments, Ms. Delisle was blackmailing defendant
  into having sex with her.   Defendant moved for a mistrial after each of
  the comments

       ¶  18.  We first observe that neither of the statements comes close to
  being impermissible comments of constitutional dimensions.  The police
  officer's testimony was not a comment on defendant's failure to offer an
  exculpatory statement at the time of arrest.  The officer was attempting to
  explain that defendant had initiated the conversation that occurred when
  defendant was taken to arraignment.  Nor could the prosecutor's question be
  reasonably construed to rise to the level of constitutional infirmity
  ascribed to it by defendant.  We agree with the trial court's
  characterization of the comment:
   
    [T]he prosecutor's question was not directed at custodial
    interrogation, but rather the failure of the defendant to complain
    about a crime against himself during the lengthy period of time in
    which he was not in custody following his arraignment.  There is
    no prohibition against such a question or comment.

       ¶  19.  Moreover, the record does not reflect any attempt by the
  prosecution to exploit these oblique references to defendant's silence.  In
  each instance, after defendant's objection, the prosecution drew no further
  attention to the remark either during witness testimony or in closing
  argument.  The trial court noted that it would be surprised if any of the
  jurors noticed the comment or its significance, offering nevertheless to
  give a curative instruction, which defendant rejected.  In sum, these
  comments are not even remotely similar to the extensive, direct references
  to defendant's invocation to his right to silence that we have previously
  held unconstitutional.  Cf. State v. Percy, 149 Vt. at 626, 548 A.2d  at 409
  (use of defendant's silence to undermine his insanity defense held
  reversible error where officers testified that defendant remained silent
  after the charges and prosecutor argued in the closing argument that the
  court should infer from his silence that defendant was lying about his
  amnesia); State v. Mosher, 143 Vt. 197, 209, 465 A.2d 261, 268 (1983) (use
  of defendant's silence held constitutional error where State "persevered"
  in bringing before the jury testimony of post-Miranda silence, reemphasized
  the issue during closing arguments, and invited the jury to draw inferences
  from that silence). 
   
       ¶  20.  The trial court has discretion in a mistrial motion.  State
  v. Mears, 170 Vt. 336, 345, 749 A.2d. 600, 607 (2000).  There is no abuse
  of discretion unless the court entirely withholds its discretion, or
  exercises it upon grounds that are clearly untenable or unreasonable.  Id.  
  Furthermore, in order to constitute reversible error, "it must appear
  affirmatively that a denial of the motion has resulted in prejudice to the
  moving party, with the burden of proof being on the movant."  State v.
  Covell, 142 Vt. 197, 199, 453 A.2d. 1118, 1119 (1982).  Whether the moving
  party was prejudiced depends on the facts and circumstances of each case,
  and therefore we review the denial of the motion within the context of the
  entire proceedings.  Id.  Under the circumstances of this case, the trial
  court was well within its discretion in concluding that a mistrial was not
  warranted.

       ¶  21.  Defendant's final claim is that the trial court abused its
  discretion by allowing the State to examine Ms. Delisle about her statement
  to Ms. Brandolino and admitting evidence of the statement.  Ms. Brandolino
  testified that Ms. Delisle asked her, "could you try to get Pat and I off
  the hook?"  At trial, the court correctly ruled that Ms. Delisle's
  statement was not hearsay, but evidence of bias.  Nevertheless, in its
  Decision and Order after defendant's motion for a new trial, the court
  characterized Ms. Delisle's request as a co-conspirator statement, thus
  admissible under V.R.E. 801(d)(2)(E). 

       ¶  22.  Statements of co-conspirators are not hearsay when offered
  against a party, if the statement was made during the course of and in
  furtherance of the conspiracy.  V.R.E. 801(d)(2)(E).  In the absence of a
  formal conspiracy charge, the court must find independent evidence of a
  concert of action in which the defendant was a participant.  See State v.
  Tedesco, 147 Vt. 133, 135-36, 513 A.2d 1164, 1165 (1986), overruled on
  other grounds, State v. Gallagher, 150 Vt. 341, 554 A.2d 221 (1988).  

       ¶  23.  Appellant argues that the admission of the evidence was error
  because the prosecution failed to prove by independent evidence the
  existence of a conspiracy between appellant and Ms. Delisle to unlawfully
  influence the witness' testimony, as required by V.R.E. 801(d)(2)(E).  See
  id. (absent a formal conspiracy charge, statements of alleged
  co-conspirators are admissible if there is independent evidence of a
  concert of action in which defendant was a participant).
   
       ¶  24.  The trial court determines the admissibility of evidence,
  including preliminary questions of whether statements fall within
  exceptions to the hearsay rule.  See V.R.E. 104(a).  We will disturb the
  trial court's discretionary ruling only if that discretion has been abused. 
  State v. Ayers, 148 Vt. 421, 424, 535 A.2d 330, 332 (1987).  Because the
  court  did not abuse its discretion admitting the evidence, we affirm.

       ¶  25.  We observe first that the trial court did find "compelling"
  evidence of a conspiracy between appellant and Ms. Delisle to create a
  cover-up.  The trial court observed that "perhaps the first thing" that Ms.
  Delisle did after her home was searched and her computer seized was to
  e-mail defendant to advise him of what had just happened.  The forensic
  analysis of defendant's computer shows that shortly after the police
  investigation started, defendant installed and ran a software program in
  his computer which makes files completely unrecoverable.  In contravention
  of their conditions of release, defendant and Ms. Delisle met several times
  after their respective arraignments.  It was reasonable for the trial court
  to infer that in these meetings they had discussed a "cover up, or at
  least, exoneration of defendant."  Ms. Delisle later appeared at the office
  of defendant's attorney to execute an affidavit exonerating defendant. 
  Finally, during her cross-examination, Ms. Delisle told a story attempting
  to exculpate defendant that the court found to be "patently false."
   
       ¶  26.  In light of those findings, the court could reasonably
  consider that Ms. Delisle's attempt to influence Ms. Brandolino's testimony
  was one more step in furtherance of the conspiracy between Ms. Delisle and
  defendant.  The fact that defendant may have not been aware of a particular
  act Ms. Delisle took in furtherance of the conspiracy does not exclude it
  from the conspiracy's scope.  See Pinkerton v. United States, 328 U.S. 640,
  647 (1946) (an overt act of one coconspirator may be the act of another
  without an agreement specifically directed to that act). Therefore, the
  statement was fairly characterized as that of a co-conspirator admissible
  under V.R.E 801(d)(2)(E).

       ¶  27.  In any event, we do not need to evaluate the sufficiency of
  this evidence to support a finding of conspiracy, since it is not necessary
  to fit the statement within the 801(d)(2)(E) exception.  As the trial court
  initially found, the statement does not fit within the 801 definition of
  hearsay in the first place.  "Hearsay" is an out of court statement offered
  in evidence to prove the truth of the matter asserted.  V.R.E. 801(c).  Ms.
  Delisle's request to Ms. Brandolino, to help her and appellant by
  testifying falsely is not hearsay since it was not offered to prove the
  truth of the statement but to show Ms. Delisle's interest in procuring a
  favorable outcome in appellant's trial.  See State v. Beattie, 157 Vt. 162,
  166-67, 596 A.2d 919, 922 (1991) (statement that a passing motorist had
  told arresting officer that there was a person "asleep, passed out, or even
  dead behind the wheel" of defendant's van was not hearsay because it was
  not offered to prove the truth of the matter asserted but rather to explain
  the officer's reasons to approach the van).  A request of this nature
  cannot be offered for its truth because it is neither true or false.  See
  United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984) ("[a]n order
  or instruction is, by its nature, neither true nor false and thus cannot be
  offered for its truth"); United States v. Keane, 522 F.2d 534, 558 (7th
  Cir. 1975) (same).  The legal relevancy of the question "could you try to
  get Pat and I off the hook?" is the fact that such an inquiry was made, not
  the truthfulness of the question.  See Shepherd, 739 Fd.2 at 514 (order or
  instructions admissible because they were offered to show that they
  occurred rather than to prove the truth of something asserted).  We
  therefore find that such evidence was properly admitted for impeachment
  purposes, in order to show Ms. Delisle's possible bias in favor of
  appellant. 
   
       ¶  28.  The credibility of a witness may be attacked by any party,
  including the party calling him or her.  V.R.E. 607.  A witness's
  credibility may be impeached by evidence of personal bias.  Reporter's
  notes, V.R.E. 607; State v. Fuller, 168 Vt. 396, 406, 721 A.2d 475, 482
  (1998).  This avenue for attacking the witness's testimony is not subject
  to the limitations on the use of extrinsic evidence imposed under rules
  608, 609, or 613.  Reporter's notes, V.R.E. 607.  "Wide latitude should be
  allowed on cross-examination for purpose of showing who and what the
  witness is and that he is unreliable, prejudiced, or biased."  State v.
  Berard,132 Vt. 138, 147, 315 A.2d 501, 508 (1974).  The trial court has
  ample discretion in determining the scope of such and its action will not
  be reversed unless it constitutes an abuse of discretion is shown.  State
  v. Morrill, 127 Vt. 506, 513, 253 A.2d 142, 147 (1969).

       ¶  29.  Here, during the prosecution's examination, Ms. Delisle denied
  appellant's involvement in the exploitation of her daughter, and professed
  a lack of recall on several questions relevant to the issue of appellant's
  culpability.  Questioning of Ms. Delisle about her feelings toward
  appellant, and her request to Ms. Brandolino to testify falsely in order to
  get Ms. Delisle and appellant "off the hook," was intended to suggest that
  Ms. Delisle's interest in protecting defendant was tainting her testimony. 
  There was no abuse of discretion in admitting the evidence that supported
  this theory.

       Affirmed.      


                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice