State v. Hiltl
| Citation | 261 A.3d 1148 |
| Decision Date | 27 August 2021 |
| Docket Number | No. 19-199,19-199 |
| Parties | STATE of Vermont v. Peter HILTL |
| Court | United States State Supreme Court of Vermont |
David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Dawn Seibert, Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. Defendant appeals from his conviction for lewd and lascivious conduct with a child following a jury trial. He argues that the court committed reversible error in admitting several surveillance videos. We agree and we therefore reverse and remand for a new trial.
¶ 2. Defendant was charged with the crime above based on his actions at a public pool with his then eleven-year-old daughter S.M. S.M. has been diagnosed with autism
spectrum disorder. Various individuals reported defendant to the pool manager after witnessing behavior between defendant and S.M. that they considered disturbing. The manager called police and defendant was subsequently charged with the crime above.
¶ 3. At trial, the State presented testimony from various individuals who witnessed the behavior in question, including a high school teacher, who was present at the pool that day with his two children. The teacher saw what he thought was a couple in the pool. At first, he believed the girl was seventeen or eighteen years old. The man was holding up the girl, supporting her on her back with his hand under her buttocks. The teacher found the behavior "odd" and "off-putting." He took his children to a different area.
¶ 4. The teacher saw S.M. and defendant again in the kiddie-pool area. S.M. was seated on defendant's lap, facing him, and at some point, she was leaning in and kissing defendant with what appeared to be open-mouth kisses. The teacher remembered three kisses. He removed his children from the area. He made eye contact with another woman who was "visibly shaking her head to [him] and kind of putting her hands up as [if] to say, ‘what's going on.’ "
¶ 5. The teacher then saw defendant and S.M. in the hot tub alone. About five minutes later, he heard a "moaning, groaning sound" from the hot tub, which he described as sounding like someone was sexually aroused. The teacher had taught students with autism
, and he suspected that S.M. might be on the spectrum given her physical behavior and lack of "affect."
¶ 6. A woman who was at the pool with her family and friends also testified. She noticed two people in the kiddie-pool area who looked too old to be there—they were sitting in about six inches of water and embracing and kissing each other "mouth to mouth." The girl was facing the man, and the man's arms were on her back, embracing and hugging her. When the girl turned around, the woman discerned that the girl appeared to have a mental disability
. She saw defendant and S.M. move to another area of the pool, again in close proximity to one another and face-to-face. It appeared that the man had his hands in the girl's crotch area. The woman testified that she perceived the man was taking advantage of a younger girl with a disability, and so she reported it to the pool manager.
¶ 7. The woman's friend also testified. She saw a couple in the kiddie pool, with the girl sitting on the man's lap, facing him "so their ... crotches would have been in contact." He was holding her tight. She thought the embrace appeared to have a sexual or romantic nature to it. The friend then saw the couple in the main pool area, and the woman realized that the girl was a child who appeared to have a disability. The girl was facing the man with her legs around him, again with crotch-to-crotch contact; the man appeared to be moving the girl in an up-and-down fashion against him. The woman thought the girl looked uncomfortable. The witness heard a grunting sound from the man during the up-and-down motions. The witness found the behavior disturbing and thought the girl might need help.
¶ 8. The pool manager testified that a customer approached her and was very upset and distressed, telling the manager she needed to do something. The manager approached defendant and S.M., who were in the pool completely embraced with defendant's hands under S.M.’s bottom; S.M.’s legs were wrapped around defendant's waist, and their genital areas were in contact. The manager told them to separate. Defendant asked why, saying that S.M. liked it that way. They eventually separated, and the manager went back upstairs. A short surveillance video of the manager approaching defendant and S.M. in the pool was admitted without objection. After this interaction, the same woman returned to the manager's desk, more agitated than before; she told the manager to do something. The manager called the police.
¶ 9. The State also presented expert testimony from a developmental behavioral pediatrician. She stated, among other things, that a child with autism
may not have appropriate social boundaries and may touch inappropriately. She testified that parents play an important role in teaching appropriate boundaries. The expert indicated that, hypothetically, if an eleven-year-old child with autism were sitting on the lap of a parent in a public place, face-to-face, kissing and embracing, that would be cause for concern. It would not be appropriate behavior for any eleven-year-old child, regardless of the child's diagnosis, because it is crossing a social boundary. An embrace that lasted for ten to fifteen minutes would also be cause for concern.
¶ 10. The expert stated that a parent would be expected to redirect a child's behavior under such circumstances. She testified that having a child with her legs around a parent's waist and groin-to-groin contact in bathing suits and hands in the buttocks or groin area would certainly be cause for concern and would be inappropriate for any child. The expert stated that children with developmental disabilities were significantly more vulnerable to abuse and expressed her belief that S.M. did not have the cognitive capacity to understand what constituted abuse or the language to express it. She opined that a child who did not attend school or receive therapy, like S.M., was even more vulnerable to abuse.
¶ 11. One of the police officers who responded that day also testified. She described what happened when she arrived on the scene. She saw two people in the hot tub. The man put his head underwater and his head was close to the knees of a juvenile female sitting on the interior bench of the hot tub. Video from a police body camera of this interaction was admitted. The officer also obtained surveillance video from the pool the day after the incident, some of which was shown to the jury over defendant's objection.
¶ 12. There were several surveillance videos from four different cameras. Three of the videos were very short—one depicted defendant and S.M. entering the main pool; the second depicted the police officer approaching defendant and S.M. in the hot tub; and the third showed an embrace in the main pool. There were also two views of defendant and S.M. in the kiddie pool, capturing the same general period from two different viewpoints. These videos showed defendant and S.M. apparently embracing for ten minutes with S.M. sitting on defendant's lap and the two apparently kissing. All of the videos were grainy.
¶ 13. Defendant objected to the admission of this evidence, arguing that while the officer could establish that the videos accurately depicted the pool on the day in question, she could not testify that they accurately depicted the events. Defendant also argued that the video had not been properly authenticated; that it arguably showed uncharged misconduct; and that it was misleading and confusing.
¶ 14. The officer then provided additional testimony regarding the video evidence outside the jury's presence. She stated that, as part of her investigation, she obtained the surveillance videos on a thumb drive from the manager of the resort where the pool was located. She reviewed the videos at the police station the day after the events in question. She stated that the videos fairly and accurately depicted the scene in question. She could identify defendant and S.M. in the videos by their clothing. There were timestamps on the videos, and she did not see any indication that there was any issue or discrepancy with the timestamp. In reviewing the videos, the officer found a point where defendant and S.M. were in the kiddie pool in ways similar to what witnesses had described.
¶ 15. The court found the videos of defendant and S.M. entering the main pool and the one in which the officer approached them in the hot tub sufficiently authenticated. See V.R.E. 901(a) (). It found that the videos had been provided at the request of law enforcement pursuant to a duly organized law enforcement investigation, they were provided by the person in charge of the facility in a timely manner, and they contained date stamps and timestamps that were consistent with the date and times that were the subject of the criminal proceeding. The court noted that it could identify defendant and S.M. in the video. The court reserved judgment on the remaining videos.
¶ 16. The court revisited the issue the following morning. Defendant again argued that the State failed to authenticate the remaining videos or establish a foundation for their admission. Defendant cited the "silent-witness" doctrine, contending that there was no eyewitness who could link the videos to the day's events and the State could not otherwise satisfy the requirements to authenticate the videos. Defendant also argued that the evidence should be excluded under Vermont Rule of Evidence 403. He asserted that the jury might be misled into believing that the...
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