In re AB, 99-065.

• Citation: 740 A.2d 367
• Decision Date: 04 October 1999
• Docket Number: No. 99-065.,99-065.
• Parties: In re A.B., Juvenile.
• Court: Vermont Supreme Court

740 A.2d 367

In re A.B., Juvenile.

No. 99-065.

Supreme Court of Vermont.

October 4, 1999.

Before AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

A.B. appeals from a family court finding of delinquency for the commission of a lewd and lascivious act upon a child under sixteen, in violation of 13 V.S.A. § 2602. A.B. contends the court erred in: (1) excluding the testimony of two defense witnesses; and (2) denying a post-trial motion to dismiss. We conclude that the first claim of error has merit and, therefore, reverse.

The evidence at trial disclosed that A.B., who was fifteen years old, lived with his family in a rural area of Addision County near a duplex in which two other families with children resided. One of the families had three children: two girls, J.P. and A.P., who were thirteen and twelve years old, respectively, and a boy, T.P., who was eleven. The other family had two children: E.R., a boy of eleven, and D.A.R., a girl of seven. All of the children played together during the summer of 1997, although less so with D.A.R. because she was much younger than the rest.

In late October 1997, D.A.R.'s father called the state police to report that D.A.R. had informed him about an alleged sexual assault by a boy in the neighborhood. D.A.R., who was eight years old at the time of trial, testified that some time during the summer of 1997, A.B. had touched her "private" parts. She responded "yes" when asked on direct and redirect examination whether A.B. had touched her on the "skin," but on cross-examination stated that he had touched her "on top" of her clothes. She could not say how many times the touching had occurred, but recalled that it took place near a basketball court and a barn located in the vicinity of her house. She also recalled that A.B. had told her not to tell anyone. She responded "no" when asked whether she was afraid of A.B. She further denied that anyone had induced her to make up the accusation.

Two additional witnesses, D.A.R.'s father and her twelve-year-old neighbor, A.P., recounted statements that D.A.R. had made to them concerning A.B.'s alleged sexual abuse. The trial court, however, made no findings concerning the statements' admissibility under V.R.E. 804a, and observed in its written decision that in reaching its decision it was not necessary to rely on any evidence offered pursuant to V.R.E. 804a.

A.P. testified that the children often rode the school bus together. She recalled that D.A.R.'s demeanor changed when A.B. got on the bus, that she became quiet and looked sad. She also recalled that T.P., her eleven-year-old brother, had often been mean to D.A.R., and had become increasingly angry with A.B. as well, frequently teasing him about his weight. She recounted that she had been called to the office of the vice-principal, Mrs. Royce, about the teasing. According to A.P., the meeting with Royce took place about a week after D.A.R. informed her father about the alleged abuse.

A.B. testified on his own behalf. He denied that he had touched or otherwise molested D.A.R. He recounted an incident on the school bus in which T.P. had called him names and accused him of sleeping with his mother. He recalled another incident on the bus in which T.P. and his sister, A.P., had accused him of inappropriately touching D.A.R., and had attempted to induce D.A.R. to admit the allegation of abuse. A.B. reported at least one of the incidents to the vice-principal, Mrs. Royce, and to his parents. He recalled that several days later, D.A.R. accused him of molesting her.

The defense attempted to call both Mrs. Royce and A.B.'s father to testify about A.B.'s report of harassment. The State filed a motion in limine seeking to exclude the evidence as irrelevant. In her offer of proof, defense counsel asserted that Royce would testify that A.B. came to her in early to mid-October and told her that he was being harassed by T.P. and A.P. Counsel explained that the testimony would show the report of harassment occurred days before D.A.R.'s accusation, and that it would show a motive for D.A.R. to fabricate the allegation. More specifically, it would buttress the defense theory that T.P. had coerced D.A.R. to fabricate the allegations in retaliation for A.B.'s report to Mrs. Royce. Counsel stated that the father would testify that after A.B. told him about the harassment on the bus, the father called T.P.'s family. A boyfriend of T.P.'s mother then came to A.B.'s house and made threatening statements, including allegations that A.B. had acted inappropriately toward D.A.R.

The court was unpersuaded of the relevance of the proffered testimony, explaining that there was "no logical connection between the evidence that you wish to offer and the conclusion that you want the Court to draw." Accordingly, the court excluded the evidence. In a relatively summary written decision, the court found that A.B. had committed the acts as alleged. In preparation for the disposition hearing, the court directed the Department of Social and Rehabilitation Services to prepare a disposition report, and further...