State v. Lemay

State v. Lemay (2004-493); 180 Vt. 133; 908 A.2d 430

2006 VT 76

[Filed 28-Jul-2006]


       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.


                                 2006 VT 76

                                No. 2004-493


  State of Vermont                               Supreme Court

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

  Joseph Roger Lemay                             November Term, 2005


  John P. Wesley, J.

  William H. Sorrell, Attorney General, David Tartter, Assistant Attorney
    General, and Sara R. Parsowith, Legal Intern (On the Brief), Montpelier,
    for Plaintiff-Appellee.

  Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

       ¶  1.  JOHNSON, J.   Defendant Joseph Roger Lemay appeals from his
  conviction on two counts of lewd and lascivious conduct with a child and
  one count of sexual assault.  Defendant argues that the trial court erred
  by allowing inadmissible hearsay testimony, and that the State failed to
  present sufficient evidence to support a conviction on the charge of sexual
  assault.  We hold that the court improperly allowed hearsay testimony, and
  we reverse and remand.

       ¶  2.  In October 2003, defendant was charged with two counts of lewd
  and lascivious conduct with a child under the age of sixteen.  The State
  alleged that on or about October 21, 2003, defendant grabbed the breasts of
  two girls, known as A.K. and B.S., both of whom were thirteen years old at
  the time of trial.  The State later added one count of sexual assault on a
  minor, alleging that defendant had also inserted his finger into A.K.'s
  vagina.  At the time of the incident, defendant was living with A.K.'s
  mother, A.K., and A.K.'s older brother in Bellows Falls, Vermont.  The four
  had moved to Bellows Falls from Manchester, New Hampshire, in July 2003.
  (FN1)  On the night of the incident, B.S., a friend of A.K. who lived
  nearby, came to A.K.'s house to spend the night.  At some point, defendant
  began wrestling with the two girls.  Several days later, A.K. told a
  neighborhood friend, Sara Campbell, Dawn Blanchard (Sara's mother), and
  Ilene Laurendeau (Sara's grandmother), that during this wrestling incident,
  defendant had touched her breasts and her vagina.  In a separate
  conversation, B.S. told her friend, Samantha Chiu, and Cynthia Chiu
  (Samantha's mother), that defendant had touched her breast while they were
  wrestling at A.K.'s house. 
               
       ¶  3.  A jury trial on all three charges began in August 2004.  At a
  pre-trial conference, the court asked the State and defense counsel whether
  there were hearsay problems with potential testimony from the friends and
  neighbors A.K. and B.S. had spoken to about the incident.  The State argued
  that the testimony of these witnesses was admissible under Vermont Rule of
  Evidence 801(d)(1)(B) as prior consistent statements for the purpose of
  rebutting the suggestion of recent fabrication.  Such a suggestion was
  present because defendant planned to argue that A.K. fabricated her charges
  of improper touching when her mother and defendant would not allow her to
  return to New Hampshire to celebrate Halloween.  Defense counsel questioned
  the timing of the statements, but the court concluded, "I'm not sure the
  timing here is critical under the rule."  Defense counsel responded, "[Y]ou
  may be right about that . . . .  I still think it's a hearsay problem but I
  can . . . understand the exception how it goes, so if it comes in, . . .
  I'll deal with it."  The court ruled that the statements were admissible
  under Rule 801(d)(1)(B), and instructed defense counsel that during the
  trial, he could preserve his hearsay objection by simply saying "hearsay"
  during the trial instead of repeating his timing argument at the bench. 

       ¶  4.  At trial, in addition to the testimony of A.K. and B.S., the
  State presented the testimony of Sara Campbell, Dawn Blanchard, Ilene
  Laurendeau, Samantha Chiu, and Cynthia Chiu as to statements A.K. and B.S.
  made to them.  Defense counsel objected to each witness's testimony by
  saying "hearsay" as instructed by the court, and the court overruled each
  objection.  At the conclusion of the trial, the jury convicted defendant on
  all three charges.

       ¶  5.  Defendant first contends the trial court erred by admitting the
  testimony of the five witnesses to whom A.K. and B.S. reported their
  allegations.  Defendant argues that the testimony of these witnesses was
  inadmissible hearsay because it did not meet the requirements of the prior
  consistent statement rule, and it did not fall under any hearsay exception. 
  We agree that the court should not have allowed this testimony, and we
  reverse defendant's conviction.
   
       ¶  6.  The State concedes that the statements at issue were hearsay
  testimony, and not prior consistent statements under Rule 801(d)(1)(B). 
  Hearsay is an out-of-court statement offered to prove the truth of the
  matter asserted.  State v. Carter, 164 Vt. 545, 549, 674 A.2d 1258, 1262
  (1996); V.R.E. 801(c).  A prior statement by a witness is not hearsay if it
  is "consistent with his testimony and is offered to rebut an express or
  implied charge against him of recent fabrication."  V.R.E. 801(d)(1)(B). 
  We have previously held, however, that such statements must "have been made
  prior to the time that the supposed motive to falsify arose."  State v.
  Roy, 140 Vt. 219, 227, 436 A.2d 1090, 1094 (1981).  This is because " '[a]
  consistent statement that predates the motive is a square rebuttal of the
  charge that the testimony was contrived as a consequence of that motive. 
  By contrast, prior consistent statements carry little rebuttal force when
  most other types of impeachment are involved.' "  Carter, 164 Vt. at 550,
  674 A.2d  at 1262-63 (alteration in original) (quoting Tome v. United
  States, 513 U.S. 150, 158 (1995)).  Defendant and the State agree that if
  A.K. fabricated her charges in response to being denied permission to
  travel to New Hampshire, her motive to fabricate arose before she and B.S.
  made the statements testified to by the State's witnesses.  These
  statements were thus not admissible under Rule 801(d)(1)(B).

       ¶  7.  The State argues that we should affirm defendant's conviction
  despite the trial court's error in admitting the statements as prior
  consistent statements, contending that:  (1) defendant failed to preserve
  his objection on hearsay grounds; (2) the statements were admissible under
  the hearsay exception for excited utterances pursuant to Rule 803(2); and
  (3) any error the court made in allowing the testimony was harmless beyond
  a reasonable doubt.
   
       ¶  8.  First, the State claims that defense counsel's initial
  discussion of the prior consistent statement issue at the pre-trial
  conference was insufficient to raise defendant's objection, and that even
  if this objection was sufficient, defense counsel's objection of "hearsay"
  was insufficient to preserve the objection at trial.  We hold that
  defendant's objection was preserved.  Rule 103(a)(1) requires parties to
  preserve a claim of error in the admission of evidence by making "a timely
  objection . . . stating the specific ground of objection, if the specific
  ground was not apparent from the context."  V.R.E. 103(a)(1).  A key
  purpose of this rule "is to sufficiently alert the trial court to the
  theory behind the objection so that the judge can rule intelligently and
  quickly."  State v. Shippee, 2003 VT 106, ¶ 10, 176 Vt. 542, 839 A.2d 566
  (mem.).  The discussion between the court, the State, and defense counsel
  at the pre-trial conference was brief, and defense counsel was arguably too
  deferential to the court's incorrect assertion that the timing of the
  statements was not "critical under the rule."  At minimum, however, in
  response to the State's assertion that the testimony was admissible,
  defense counsel mentioned the issue of the timing of the statements, and
  the court considered and dismissed the possibility that timing made a
  difference.  Defense counsel's statement was clear and specific enough "to
  sufficiently alert the trial court to the theory behind the objection," and
  thus fulfilled the purposes of Rule 103(a)(1).  Id.  Counsel's later
  objections at trial, while they may not have ordinarily been sufficient to
  preserve a particular hearsay objection, were made according to the court's
  specific instructions for preserving the timing objection.  Rule 103(a)(1)
  requires counsel to state the specific ground of an objection only "if the
  specific ground was not apparent from the context."  V.R.E. 103(a)(1).  In
  the context of the court's instructions, the meaning of the word "hearsay"
  was clear enough to preserve defendant's objection.
   
       ¶  9.  The State next asserts that one or more of the prior
  consistent statements could have been allowed as excited utterances
  pursuant to Rule 803(2).  See State v. Dreibelbis, 147 Vt. 98, 100-01, 511 A.2d 307, 308 (1986) ("Even if the grounds relied on by the court below
  were error, . . . this Court has held that it will not reverse a correct
  result merely because it is reached for the wrong reason.").  Rule 803(2)
  allows the admission of statements "relating to a startling event or
  condition made while the declarant was under the stress of excitement
  caused by the event or condition."  V.R.E. 803(2).  The State contends that
  because Sara Campbell and Ilene Laurendeau testified that A.K. was shaking
  and crying when she made her statements to them, these statements could
  have been admitted as excited utterances.  We disagree.  "The underlying
  rationale for the exception lies in the assumption that a person's powers
  of reflection and fabrication will be suspended when she is subject to the
  excitement of a startling event, and any utterances she makes will be
  spontaneous and trustworthy."  In re Estate of Peters, 171 Vt. 381, 391,
  765 A.2d 468, 476 (2000).  A statement does not necessarily need to be made
  immediately following an exciting event to fit within the excited utterance
  exception.  See State v. Shaw, 149 Vt. 275, 281, 542 A.2d 1106, 1109 (1987)
  (holding that the victim's statement that the defendant had raped her was
  admissible as an excited utterance because it was made shortly after the
  defendant had returned to her apartment).  The exception does require,
  however, that the excitement be "caused by the event or condition."  V.R.E.
  803(2).  The State presents no evidence that A.K.'s excitement was caused
  by the event she was describing.  A.K.'s statements to Sara Campbell and
  Ilene Laurendeau occurred several days after the event she was describing,
  but followed shortly after she was called into her house by her mother. 
  A.K.'s excitement could have resulted from some aspect of her conversation
  with her mother that renewed the stress of the original incident, but the
  State has failed to demonstrate that this was the case.  Instead, the State
  asks us to speculate about potential sources of A.K.'s excitement, arguing
  that only the stress of the original incident could have produced her
  distress.  Engaging in such speculation would strip the excited utterance
  exception of any meaningful requirements.  When the declarant's excitement
  results from some identifiable source, such as the shock of discovering the
  identity of her attacker or learning about a startling event for the first
  time, see In re Estate of Peters, 171 Vt. at 392, 765 A.2d  at 477 (citing
  examples of later events that can produce excited utterances), we can
  determine whether the source was sufficiently startling to ensure the
  statement's spontaneity and trustworthiness.  Here, we have too little
  information about the source of A.K.'s excitement to make such a
  determination.  A.K.'s statements were not made soon enough to arise from
  the original incident, and we can infer the existence of a more immediate
  source of excitement only by assuming that some unidentified stimulus
  rekindled her original stress.  These circumstances provide none of the
  assurances of reliability underlying the excited utterance exception.  The
  exception thus fails to provide an alternative basis for admitting the
  statements that would allow us to ignore the court's error.
   
       ¶  10.  The State urges us to affirm defendant's conviction despite
  this error because the error was harmless.  We may find an error harmless
  only if it was harmless beyond a reasonable doubt.  State v. Trombley, 174
  Vt. 459, 462, 807 A.2d 400, 405 (2002) (mem.).  The trial court's improper
  admission of prior consistent statements was not harmless error.  Much of
  defendant's trial focused on a single key issue:  whether the jury should
  believe the testimony of A.K. and B.S. that defendant touched them
  inappropriately.  Defendant's strategy was to convince the jury that A.K.
  was angry at defendant and her mother because they would not let her travel
  to New Hampshire.  A.K.'s mother stated that A.K. threatened to "get"
  defendant because he would not let her make the trip.  She also testified
  that A.K. had told outrageous lies in the past, and that she did not
  believe her daughter's allegations.  While none of the hearsay witnesses
  testified in great detail, they repeated the critical elements of the
  State's case.  Most of this testimony focused on defendant's grabbing of
  the girls' breasts, but at least one hearsay witness, Dawn Blanchard,
  repeated A.K.'s allegation that defendant touched her vagina.  Allowing
  five of the State's nine witnesses to make hearsay statements repeating the
  substance of the complainants' testimony made the State's case
  significantly stronger than it would have been otherwise.  This seems
  particularly so where, as here, the effect of the error was to allow the
  jury to consider the inadmissible hearsay not only for its rehabilitative
  effect, but also "as substantive evidence of the truth of the matter
  asserted."  State v. Church, 167 Vt. 604, 605, 708 A.2d 1341, 1342 (1998)
  (mem.) (quotations omitted) (explaining that prior consistent statements
  admitted under Rule 801(d)(1)(B) are nonhearsay and may be considered as
  substantive evidence).  No reason appearing to the contrary, it is likely
  that the jury treated the testimony as it was intended by the State and
  allowed under the Rule: as direct evidence of guilt.  The balance of the
  admissible testimony was not so overwhelming as to compel a conclusion
  beyond a reasonable doubt that the court's multiple admissions of improper
  hearsay were harmless.  We must therefore reverse and remand.
   
       ¶  11.  Defendant argues that in addition to a new trial on the two
  counts of lewd and lascivious conduct, he is entitled to an acquittal on
  the charge of sexual assault because the State presented insufficient
  evidence to support his conviction on that charge.  Defendant filed a
  post-trial motion for judgment of acquittal pursuant to Vermont Rule of
  Criminal Procedure 29(c); the trial court denied the motion, although it
  did so in part based on the testimony we have held was inadmissible.  We
  must now consider whether, absent that testimony, the court should have
  granted defendant's motion.  When we review a denial of a Rule 29 motion
  for judgment of acquittal, "we view the evidence presented by the State in
  the light most favorable to the prosecution, excluding any modifying
  evidence, and determine whether the State's evidence sufficiently and
  fairly supports a finding of guilt beyond a reasonable doubt."  State v.
  Squiers, 2006 VT 26, ¶ 2, 17 Vt. L. Wk. 54, 896 A.2d 80. 

       ¶  12.  Defendant claims he was entitled to a judgment of acquittal
  because:  (1) no evidence was presented at trial that he engaged in a
  "sexual act" with A.K.; and (2) if evidence showed the commission of such
  an act, it occurred in New Hampshire, not Vermont.  We reject both of these
  claims.  The definition of sexual assault on a minor requires a "sexual
  act," 13 V.S.A. § 3252(b),  which the statute defines, in relevant part, as
  "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). 
  A.K.'s testimony was vague at times, but in response to questions from both
  the State's attorney and defense counsel as to whether or not defendant had
  put his finger "in" or "inside" her vagina, she indicated several times
  that he had.  We hold that a reasonable jury could have believed this
  testimony and concluded beyond a reasonable doubt that defendant's finger
  penetrated A.K.'s vagina.  
   
       ¶  13.  Similarly, A.K.'s testimony was sufficient to convince a
  reasonable jury that such an act took place in Vermont.  Defendant argues
  that A.K. alleged vaginal touching only during the spring of 2003, when
  A.K. was living in New Hampshire.  In A.K.'s trial testimony, however, when
  the State's attorney asked A.K. about incidents when defendant touched her
  "in the vagina," A.K. responded that such incidents happened both when she
  was living in New Hampshire and after she had moved to Vermont.  Both sides
  asked A.K. to explain testimony from her prior deposition; defense counsel
  pointed out excerpts seeming to indicate that the dates of any vaginal
  touching were too early to have taken place in Vermont, while the State's
  attorney identified testimony indicating that defendant had touched A.K.'s
  vagina in both Bellows Falls and Manchester, New Hampshire.  The jury was
  entitled to conclude from A.K.'s trial testimony that at least one incident
  of sexual assault took place in Vermont, and therefore, defendant's motion
  for a judgment of acquittal was properly denied by the trial court.

       Reversed and remanded.     



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  Defendant, who is not A.K.'s father, married A.K.'s mother in 2004.