In re A.C.

• Decision Date: 19 April 2012
• Docket Number: No. 11–057.,11–057.
• Citation: 48 A.3d 595,2012 VT 30
• Court: Vermont Supreme Court
• Parties: In re A.C.

48 A.3d 595

2012 VT 30

In re A.C.

No. 11–057.

Supreme Court of Vermont.

April 19, 2012.

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.

ENTRY ORDER

¶ 1. Defendant (A.C.), a juvenile, appeals an adjudication of delinquency based on prohibited acts pursuant to 13 V.S.A. § 2632. He raises several evidentiary issues and argues that the evidence was insufficient to support the court's ruling. We affirm.

¶ 2. On the basis of an incident at school, the State filed a delinquency petition alleging that A.C. had engaged in open and gross lewdness and lascivious conduct pursuant to 13 V.S.A. § 2601. The State's case can be summarized as follows. The complaining witness (A.R.), defendant, and a third juvenile (T.W.) went to high school together. On March 18, 2010, A.R. was on her way to science class when A.C. and T.W. cornered her in the hallway. T.W. touched her breasts through her clothing and reached up her skirt and touched her vaginal area outside of her underwear; at the same time, A.C. slid his hand up her skirt and touched her buttocks through her underwear. A.R. tried to fend off the boys by telling T.W. to let her go and by slapping his hand, and she swung her arm backward to stop A.C. The boys stopped, and A.R. ran into her classroom crying.

¶ 3. The State filed delinquency petitions with respect to both A.C. and T.W. on the basis of this incident. The trial court consolidated the first part of the merits hearings with respect to T.W. and A.C. to take evidence from A.R. and other common witnesses, but then bifurcated the hearings and heard other testimony from additional witnesses, including A.C. himself, separately. On October 19, 2010, the trial court issued its initial decision on the merits, entering an adjudication of delinquency with respect to A.C.

¶ 4. As a result of the State's late disclosure of a recorded police interview with T.W., upon the trial court's invitation, A.C. requested that the court disregard A.C.'s testimony in its entirety as if he had never testified in the case, and made a proffer concerning T.W.'s expected testimony. The trial court agreed to review the evidence in light of the request and to reconsider its findings and conclusions in light of the proffered testimony.

¶ 5. At the disposition hearing on January 18, 2011, the trial court reaffirmed its prior findings except that, on its own motion, it struck the conclusion that the State had proven lewd and lascivious conduct and instead held that the State had established the misdemeanor of prohibited acts. See 13 V.S.A. § 2632. Both parties acquiesced to the court's amended finding. Although defendant challenges the sufficiency of the evidence, he does not appeal the trial court's substitution of a different, lesser charge.¹

¶ 6. On appeal, A.C. makes several arguments arising from the same constellation of testimony and rulings. In the course of A.R.'s testimony, the State asked A.R. whether, prior to March of 2008, she had “any problems with [A.C.] touching you or doing things.” A.C. objected on the ground that the State had failed to provide notice pursuant to Vermont Rule of Criminal Procedure 26 of intent to introduce evidence of prior bad acts. See V.R.F.P. 1 (providing that, with certain exceptions not germane to this appeal, Vermont Rules of Criminal Procedure apply to delinquency proceedings). The trial court overruled the objection, and, in response to the follow-up question, “Any problems with [A.C.]?” A.R. replied, “No.”

¶ 7. A.R. testified in the hearing that she had been subjected to prior unwanted touching by the other juvenile, T.W. On cross-examination, T.W.'s counsel asked A.R. the following question: “Now, there was some touching going on you indicated, and this involved other people, not just you; is that correct?” The State objected to the question, and during the ensuing discussion with the court T.W.'s counsel explained his goal as follows: “What I'm trying to show, your Honor, is that there was inappropriate, consensual touching going on by many kids at this time.” The trial court sustained the State's objection, responding, “It doesn't have anything to do with your client's actions.”

¶ 8. A.C.'s counsel did not attempt to question A.R. about the actions of other students. Nor did A.C.'s counsel attempt to question A.R. about any alleged instances in which she engaged in prior consensual conduct involving touching or being touched by A.C. or any other student.

¶ 9. During the second part of A.C.'s merits hearing, two witnesses were allowed to testify that A.R. had allegedly told them that she had problems with both T.W. and A.C. inappropriately touching her prior to March 18, 2010. First, the State asked Penelope Gratton, an educator who escorted A.R. to the principal's office following the incident, “What did [A.R.] say at that point?” A.C. objected generally, and the court overruled the objection. Ms. Gratton proceeded to testify that A.R. reported that “the boys had touched her and that was not the first time they had touched her.” A.C. did not raise a Criminal Rule 26 objection to this testimony. See V.R.F.P. 1(a)(1) (“The Rules of Criminal Procedure [generally] apply to all delinquency proceedings.”). On further questioning by defense counsel and the court itself, Ms. Gratton acknowledged that she had just assumed that the prior instances to which A.R. was referring involved both A.C. and T.W., but A.R. had not actually said that both boys were involved in the prior instances.

¶ 10. Assistant Principal Dennis Hill testified that A.R. was fearful about returning to school because she “had alluded to the fact that this wasn't the first time that this contact had been happening with these two boys.” A.C. did not object to this statement. In fact, on cross-examination, A.C. proceeded to elicit testimony on that very subject. In particular, A.C. introduced Mr. Hill's prior sworn statement and asked him to confirm that A.R. had previously told him that “as far back as Christmastime, these two boys had been engaging in this activity with her.” Mr. Hill responded, “[s]imilar activities.”

¶ 11. On the basis of these exchanges, defendant raises several evidentiary issues on appeal. First, defendant alleges that the trial court denied his Sixth Amendment Confrontation Clause right by allowing Ms. Gratton and Mr. Hill to testify about A.R.'s statements that A.C. and T.W. had previously touched her when A.R. was unavailable to be cross-examined on this testimony.

¶ 12. We need not address whether defendant's legal argument is correct, because the factual predicate for that argument—that A.R. was unavailable—is at odds with the record. Defendant never actually sought to recall A.R. to cross-examine her regarding this testimony, and there is no evidence in the record that A.R. would have been unavailable to testify if he had called her to cross-examine her in connection with the hearsay testimony of Ms. Gratton and Mr. Hill. Defendant predicates his claim that A.R. was unavailable to testify on this subject on the trial court's ruling disallowing a question by T.W.'s counsel designed to elicit testimony “that there was inappropriate, consensual touching going on by many kids at this time.”

¶ 13. In the evidentiary ruling relied upon by defendant, the trial court concludedthat the alleged misconduct of others did not have anything to do with T.W.'s (or, by extension, A.C.'s) own conduct at issue in this case. This ruling by the trial court cannot fairly be read as a blanket exclusion of any evidence relating to prior instances of consensual or nonconsensual conduct between A.C. and A.R.² We do not know how the trial court would have ruled if A.C. had sought to cross-examine A.R. specifically about her prior conduct with A.C. because A.C. never attempted to do so. For that reason, we cannot credit A.C.'s assertion that A.R. was unavailable to cross-examine on these issues such that Mr. Hill's and Ms. Gratton's testimony triggered Confrontation Clause issues.

¶ 14. Defendant acknowledges that in the absence of an objection to the Gratton and Hill testimony, other than a hearsay objection with respect to Ms. Gratton's testimony, we review for plain error. State v. Butson, 2008 VT 134, ¶ 15, 185 Vt. 189, 969 A.2d 89. In the face of this record, the court's admission of the Gratton and Hill testimony did not constitute error “so grave and serious that it strikes at the very heart of the defendant's constitutional rights.” Id. (quotation omitted).

¶ 15. Second, defendant argues that the court “erroneously denied A.C. the right to present a complete and adequate defense by precluding him from questioning the complaining witness about prior voluntary and consensual participation in playful touching after allowing the state to elicit the same.” As noted above, the court did not preclude A.C. from questioning A.R. about prior voluntary and consensual participation in playful touching, either before or after the Hill and Gratton testimony. The court disallowed broad questioning designed to show “that there was inappropriate, consensual touching going on by many kids at this time.” A.C. never attempted to question A.R. more specifically about her own prior voluntary and consensual participation in such conduct. Nor did T.W. during the joint portion of A.C.'s trial. Accordingly, we have no ruling to review.

¶ 16. Third, defendant argues that the court erroneously allowed the State to elicit testimony regarding prior uncharged criminal conduct of A.C. in violation of Criminal Rule 26, which requires the State to provide advance notice when it intends to offer evidence of other criminal offenses. The State's question to A.R. in direct examination, to which A.C. objected on the basis of Rule 26, could have elicited testimony regarding prior uncharged criminal conduct by A.C., if she had responded differently. But she testified that she did not have prior problems with A.C. touching her. Acc...