State v. Graham

• Decision Date: 29 April 2016
• Docket Number: No. 15–296.,15–296.
• Citation: 147 A.3d 639,2016 VT 48
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Julianne GRAHAM.

147 A.3d 639

2016 VT 48

STATE of Vermont

v.Julianne GRAHAM.

No. 15–296.

Supreme Court of Vermont.

April 29, 2016.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff–Appellant.

Brooks G. McArthur of Jarvis, McArthur & Williams, Burlington, for Defendant–Appellee.

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

SKOGLUND, J.

¶ 1. The State appeals the dismissal of three counts of sexual exploitation of a minor, in violation of 13 V.S.A. § 3258. The charges were filed against defendant, a high school employee, based on her having engaged in sexual acts with a student over the summer break between defendant's school contracts. The issue is whether the circumstances of this case support the charges. We conclude that they do not, and affirm.

¶ 2. In reviewing the grant of a motion to dismiss, “we consider whether the evidence, taken in the light most favorable to the State, excluding modifying evidence, would fairly and reasonably tend to show defendant committed the offense, beyond a reasonable doubt.” State v. Baron, 2004 VT 20, ¶ 2, 176 Vt. 314, 848 A.2d 275 (quotation omitted). The salient facts are not in dispute. Beginning in August 2012, defendant was employed by Chittenden South Supervisory Union (CSSU) for each of three consecutive years at Champlain Valley Union High School (CVU). During the 2012–2013 school year, she was employed as a paraeducator. During the 2013–2014 and 2014–2015 school years, defendant was employed as a program assistant. She worked with the putative victim, K.S., in a school program during the 2013–2014 school year. In May 2014, defendant's supervisors told her that she could no longer work with K.S. because of concerns that she was spending an inappropriate amount of time with him to the detriment of the other students in the program. K.S. was transferred to a different program, at which point defendant no longer had direct supervision over him.

¶ 3. During each of the years defendant worked at CVU, she was hired as a full-time “school-year employee” under the collective bargaining agreement. This classification meant that she was employed on a year-to-year basis, with the employment commencing two days before the students started school and ending one day after the last day of instruction, for a total of less than 200 days per year.

¶ 4. Initially, in May 2014, defendant was advised that her position at the school had been eliminated for the following year. Later that month, however, defendant received a letter stating that CSSU would be able to retain her services for the following school year. In response to the letter, defendant confirmed in writing her intent to work for CVU during the 2014–2015 school year.

¶ 5. At defendant's option, employment benefits were not extended to defendant beyond the 2013–2014 school year, except for certain benefits that did not require her to make premium payments. Defendant was not offered a summer position and thus was neither employed by CSSU nor given any supervisory role over students during the summer of 2014. On August 25, 2014, defendant resumed employment at CVU under a new contract with CSSU.

¶ 6. In February 2015, the State filed an information that, in relevant part, charged defendant with three counts of sexual exploitation of a minor, in violation of 13 V.S.A. § 3258(a), which provides as follows:

(a) No person shall engage in a sexual act with a minor if:

(1) the actor is at least 48 months older than the minor; and

(2) the actor is in a position of power, authority, or supervision over the minor by virtue of the actor's undertaking the responsibility, professionally or voluntarily, to provide for the health or welfare of minors, or guidance, leadership, instruction, or organized recreational activities for minors.

The information alleged that “on or about the summer of 2014” defendant engaged in sexual acts with a minor at least forty-eight months younger than her “while the defendant was in a position of supervision over the minor by undertaking the responsibility to provide for the instruction of minors.”¹

¶ 7. Defendant filed a motion to dismiss the sexual-exploitation counts for lack of a prima facie case pursuant to Vermont Rule of Criminal Procedure 12(d), asserting that the State would be unable to prove beyond a reasonable doubt that defendant: (1) was in a position of supervision over K.S. during the summer of 2014; (2) was undertaking the responsibility to provide for the instruction of minors; or (3) abused her position of supervision over K.S. to engage in a sex act.

¶ 8. Following a motion hearing in which three witnesses testified for the State, the criminal division of the superior court granted defendant's motion to dismiss. The court ruled that the plain meaning of § 3258(a) requires the actor to be in a position of power, authority, or supervision at the time of the sex act, and that defendant was not employed by CSSU at the time of the charged sex acts. The court acknowledged that a defendant need not be engaged in a specifically charged supervisory task at the exact time of the sex act. But, according to the court, although a school employee in a position of authority could be charged for sex acts with students occurring during the school year outside of school hours, criminal liability under the statute does not extend to situations, such as this, where defendant was not employed by the school, and thus not in a position of authority, at the time of the charged sex acts.

¶ 9. Pursuant to Rule 12(d)(2), a trial court must dismiss an information if the State “does not establish by affidavits, depositions, sworn oral testimony, or other admissible evidence that it has substantial, admissible evidence as to the elements of the offense challenged by the defendant's motion ... sufficient to prevent the grant of a motion for judgment of acquittal at the trial.” The State “need only show that it has enough evidence to go to the jury on the issue raised by the defendant—that is, taking the evidence in its most favorable construction to the state it reasonably tends to show defendant's guilt beyond a reasonable doubt.” Reporter's Notes, V.R.Cr.P. 12. The question of whether the State has met its burden is one of law, which we review de novo. State v. Valyou, 2006 VT 105, ¶ 4, 180 Vt. 627, 910 A.2d 922 (mem.).

¶ 10. The State argues on appeal that, under the circumstances of this case, the trial court erred by not allowing a jury to determine whether defendant was in a position of supervision over the minor pursuant to § 3258(a) by virtue of defendant's undertaking the responsibility to provide for the instruction of minors. The State breaks this argument into two parts. First, the State argues that whether she was an employee of CSSU during the summer of 2014 was a factual question that should have been left for a jury to decide. In support of this argument, the State notes for the first time on appeal that defendant would not have been entitled to unemployment compensation during the summer of 2014 because she had “reasonable assurance” of employment at CVU for the 2014–2015 academic year. See 21 V.S.A. § 1343(c)(1) (providing that, with respect to services performed in instructional capacity at educational institution, unemployment benefits are not available during period between two successive academic years). The State also notes in support of this argument that during the summer of 2014 defendant continued to receive certain employment benefits for which she did not pay any premiums. Apparently, she was covered under the CSSU's life insurance and long-term disability policies, as well as the Vermont Municipal Retirement Plan, although she was not receiving contributions under the plan during that period because she was not under contract and being paid a salary. Finally, the State notes that defendant “may have been subject to certain school policies during the summer.”

¶ 11. We find no merit to this argument. The evidence, viewed most favorably to the State, supports the trial court's findings that defendant was a school-year employee who was not under contract with CSSU during the summer of 2014 and had no supervisory responsibilities for CVU students at that time. Even assuming defendant could not have collected unemployment benefits during the summer of 2014 and continued to receive carryover employment benefits for which she paid no premiums, that did not make her an employee of CSSU at that time. Accordingly, the trial court did not err by not submitting to a jury the question of whether defendant was an employee of CSSU during the summer of 2014.

¶ 12. The second part of the State's argument is more subtle, and the answer is less obvious. The State contends that whether or not defendant was an employee of CSSU during the summer of 2014 is not dispositive of whether she was in a position of supervision over the minor “by virtue of” her having undertaken responsibility to instruct minors during previous school years. In the State's view, the trial court misread the statute by assuming that the only way defendant could have been in a position of supervision over K.S. by virtue of having undertaken instructional responsibility for minors is by being an employee of the school at the time of the charged sex acts.² Parsing the statutory language, the State acknowledges that the Legislature's choice of the present tense “is” in the first sentence of § 3258(a) means that the defendant must be in a position of power, authority, or supervision at the time of the charged sex act. The State contends, however, that the position of power, authority, or supervision may have been reached “by virtue of” defendant having undertaken instructional responsibilities prior to the charged sex act but no longer remaining at the time of the act. According to the State, this construction of the statute is bolstered by the fact that the statute governs not only professionals...