State v. Church, 96-351

• Decision Date: 21 January 1998
• Docket Number: No. 96-351,96-351
• Citation: 708 A.2d 1341,167 Vt. 604
• Parties: STATE of Vermont v. Lynn CHURCH.
• Court: Vermont Supreme Court

Page 1341

708 A.2d 1341

167 Vt. 604

STATE of Vermont v. Lynn CHURCH.

No. 96-351.

Supreme Court of Vermont.

Jan. 21, 1998.

Before DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

Defendant was charged with one count of sexual assault on a minor (13 V.S.A. § 3252(b)(1)) and one count of lewd and lascivious contact with a minor (13 V.S.A. § 2602) for acts alleged to have occurred with his daughter. He appeals from the jury's guilty verdict, and we affirm.

The acts in question were alleged to have occurred with defendant's daughter S.C., when she was between twelve and fourteen years old. Prior to trial, the court granted defendant's motion to suppress evidence of defendant's alleged sexual acts with another daughter, J.C.

Defendant raises three issues on appeal. Defendant argues first that the information was insufficient to charge the offense because it omitted an essential element of the offense--the words "with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of such person or of such child." However, the information was amended during trial in order to add the missing element, as allowed by V.R.Cr.P. 7(d) "[i]f no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." The amendment in question did not result in an additional or different offense being charged. Since defendant's brief does not acknowledge the amended information, defendant has not pointed to substantial rights that might have been prejudiced by the amendment. Nor does the record suggest that any such rights were involved. Defendant was aware of the nature of the charges and has never argued the contrary.

Defendant next argues that the testimony of Carolyn Belleview should not have been admitted, since it did not qualify as a prior consistent statement under V.R.E. 801(d)(1)(B), both because the statement by the witness was not "shown to have been made prior to the time that the supposed motive to falsify arose," citing State v. Carter, 164 Vt. 545, 549, 674 A.2d 1258, 1262 (1996), and because evidence should not be admitted under V.R.E. 801(d)(1)(B) to enhance the credibility of the witness.

During its case, defendant presented testimony that S.C. had recanted her allegations against defendant during a conversation with an acquaintance. After the defense closed its case, the State offered the testimony of Carolyn Belleview, who would testify that S.C. told her that she had been sexually molested by her father. This testimony was offered to rehabilitate S.C. as a witness following testimony about S.C.'s alleged recantation. The court allowed the Belleview testimony as "relevant toward the credibility of the witness as a balance to the inconsistency."

Defendant argues that the Belleview testimony did not fit the requirements of V.R.E. 801(d)(1)(B), since the statements made by S.C. to the witness cannot be said to have been made "prior to the time that the motive to falsify arose" and hence fail under that rule. We need not resolve this issue. S.C.'s statements to the witness were not offered as nonhearsay under the rule, they were offered and admitted to rehabilitate the witness.

V.R.E. 801(d)(1)(B) does not govern the admissibility of prior consistent statements to rehabilitate a witness; it "merely allow[s] a certain subset of these statements to be used as substantive evidence of the truth of the matter asserted." United States v. Ellis, 121 F.3d 908, 919 (4th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 738, 139 L.Ed.2d 674 (1998); see also United States v. Rubin, 609 F.2d 51, 69 (2d Cir.1979) (Friendly, J., concurring) (Fed.R.Evid. 801(d)(1)(B) "simply does not deal with the extent to which prior consistent statements may be used for rehabilitation"). Accordingly, defendant...