State v. Cameron, 97-046.

• Decision Date: 16 October 1998
• Docket Number: No. 97-046.,97-046.
• Citation: 721 A.2d 493
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Richard G. CAMERON.

721 A.2d 493

STATE of Vermont v. Richard G. CAMERON.

No. 97-046.

Supreme Court of Vermont.

October 16, 1998.

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 Rehabilitation Services (SRS) interviewed the children. A second interview was held in April 1994. Both interviews were videotaped.

In November 1994, the State filed a fourcount 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...