State v. Johnson

• Decision Date: 17 April 1992
• Docket Number: No. 90-287,90-287
• Citation: 158 Vt. 344,612 A.2d 1114
• Parties: STATE of Vermont v. Aaron E. JOHNSON.
• Court: Vermont Supreme Court

Page 1114

612 A.2d 1114

158 Vt. 344

STATE of Vermont v. Aaron E. JOHNSON.

No. 90-287.

Supreme Court of Vermont.

April 17, 1992.

Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Carlyle Shepperson, West Corinth, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

MORSE, Justice.

Defendant appeals from a jury conviction on six counts of lewd or lascivious conduct with a child, in violation of 13 V.S.A. § 2602. He argues that the trial court erred by (1) failing to instruct the jury on the effect of the statute of limitations; (2) instructing the jury that causing a child to touch the child's own body may constitute a lewd or lascivious act "upon or with the body" of a child; (3) not granting a mistrial in light of the prosecution's improper questioning of a witness and closing argument; and (4) denying his motion for severance. We affirm.

Defendant worked as a counselor during a summer camp session held from June 30, 1985 to July 13, 1985 for children with mental disabilities. The State charged defendant with seven counts of lewd or lascivious behavior with a child based on his conduct toward four different boys during that two-week period. The counts alleged that "on or about" July 1985 defendant fondled the genitals of three boys, rubbed his genitals against another boy, and had two boys masturbate while he and other juveniles looked on. The jury found defendant guilty of six of the seven counts.

I.

Defendant first claims that the court erred by refusing to instruct the jury that he could not be found guilty of offenses committed before July 1, 1985, because the three-year statute of limitations in effect on June 30, 1985 had run when charges were brought against him in July of 1988. We disagree.

Until 1985, 13 V.S.A. § 4501 permitted prosecutions for unspecified crimes, including lewd or lascivious conduct with a child, only within three years after the commission of the offense. Effective July 1, 1985, however, prosecutions for lewd or lascivious conduct with a child could be commenced "within six years after the commission of the offense." 13 V.S.A. § 4501(c). Apparently, both the prosecution and the defense in this case proceeded under the assumption that the three-year statute of limitations was controlling with regard to conduct alleged to have occurred before July 1, 1985. At the charge conference, the trial court determined that the prosecution was within the three-year statute of limitations, and refused to instruct the jury, as requested by defendant, that time is an essential element of the crime in this instance.

Approximately a year after the conviction here, we held in State v. Petrucelli, 156 Vt. 382, 382, 592 A.2d 365, 365 (1991), that the 1985 amendment lengthening the statute of limitations for sexual assault and lewd and lascivious conduct from three years to six years applied retroactively to conduct for which the prior statute of limitations had not run at the time of the amendment. Under that holding, the current six-year statute of limitations governed the offenses charged in this case even if they occurred before July 1, 1985 and defendant's first claim of error is unavailing.

We reject defendant's assertion, which he made for the first time in his reply brief, despite having filed his initial brief approximately seven months after Petrucelli was decided, that our holding in that case violates the federal constitutional bar against ex post facto laws. See State v. Creekpaum, 753 P.2d 1139, 1144 (Alaska 1988) (extension of statute of limitations for crime of sexual assault on a minor before the original period of limitation had run was not an ex post facto law in violation of the state or federal constitution); People v. Lewis, 180 Cal.App.3d 816, 822-23, 225 Cal.Rptr. 782, 785 (1986) ("A law which increases a limitations period or provides a new method of tolling it may be applied immediately to all crimes as to which the period has not yet run under the prior law."); State v. Nunn, 244 Kan. 207, 220, 768 P.2d 268, 278-79 (1989) (agreeing with general rule that retroactive application of statute extending limitations period does not violate constitutional bar against ex post facto laws); Commonwealth v. Bargeron, 402 Mass. 589, 591, 524 N.E.2d 829, 830 (1988) (courts have been consistent in adopting view that extension of limitations period neither changes the elements of, nor enhances the punishment for, a crime, and therefore does not violate bar against ex post facto laws). We also reject defendant's companion argument that the Petrucelli decision violates due process because it operates as an ex post facto law by unforeseeably enlarging a criminal act. See Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894 (1964) (judicial enlargement of narrow and precise trespass statute to convict Afro-Americans of trespassing at "whites-only" restaurant violated due process by operating as an ex post facto law). As noted above, lengthening a limitations period does not "enlarge" an offense by changing its elements or increasing its punishment. Moreover, in Petrucelli itself, we distinguished contrary case law in the civil field, and expressly stated that we were not altering well-established criminal law. 156 Vt. at 385, 592 A.2d at 366-67.

II.

Next, defendant argues that the trial court erred by instructing the jury that the element "upon or with the body of a child" may be satisfied upon a finding that defendant "caused the child to touch his own body in a sexually stimulating or erotic manner." We agree with the trial court that construing the phrase "upon or with the body of a child" to preclude the prosecution of persons who cause children to engage in sexual acts or to pose in a sexually explicit manner would render § 2602 ineffective or lead to absurd results. See State v. Sidway, 139 Vt. 480, 484, 431 A.2d 1237, 1239 (1981). The act of encouraging a child to masturbate in the presence of others is plainly an act committed "with the body of a child." See People v. Meacham, 152 Cal.App.3d 142, 153, 199 Cal.Rptr. 586, 593 (1984) (children touching their own genitalia at the instigation of the defendant satisfied elements of crime proscribing lewd and lascivious acts on or with the body of a child).

III.

Defendant also contends that the court abused its discretion by not granting a mistrial based on a question posed by the prosecutor during the examination of one victim's mother and a statement made during the State's closing argument. The prosecutor asked the mother whether her son would "make something like this up," referring to a lewd act allegedly committed by defendant. The mother answered, "No," and defense counsel objected. The court had the question and answer stricken from the record, admonished the prosecutor, and instructed the jury to ignore the exchange. In chambers, defense counsel asked for a mistrial. The court denied the motion, concluding that the jury had not been unduly influenced by the error, but warned the prosecutor that another similar question would result in a mistrial.

The second challenged statement was made by the prosecutor during her closing argument:

At this point, after hearing all of the evidence for the last few days in this case, you should have a belief in the truth of the charges against [the defendant]. It wasn't pleasant to sit through this, and there is nothing that we can do to make what happened to these kids right. But if we tell them we don't believe them, it makes it a whole lot worse.

Defense counsel objected to these comments, and the court reminded the jury that the case was to be decided on the evidence presented, not on either sympathy or prejudice for any of the parties involved. Defendant argues that the prosecutor's statement, when considered in light of the court's earlier warning, mandated a mistrial. We conclude that the court acted well within its discretion in denying the motion for a mistrial. State v. Roberts, 154 Vt. 59, 73, 574 A.2d 1248, 1255 (1990).

Considering that the response to the prosecutor's improper question was provided by the victim's mother rather than an expert witness, see State v. Wetherbee, 156 Vt. 425, 435, 594 A.2d 390, 395 (1991) (allowance of an expert's testimony related to victim's credibility is especially prejudicial because "the average juror believes that psychologists are specially trained to ferret out truth"), and that the court immediately admonished the attorney and instructed the jury to disregard the question and answer, we cannot conclude that the court abused its discretion in determining that defendant had not been prejudiced. Further, while appealing to a juror's sympathies may be improper, the prosecutor's reference here was not so egregious as to warrant a mistrial. See State v. Francis, 151 Vt. 296, 299, 561 A.2d 392, 394 (1989) (citing factors relevant for determining whether a prosecutor's statements to the jury ought to result in reversal).

IV.

Finally, defendant argues that the trial court should have granted his motion to sever the charged offenses as a matter of right because they were "joined for trial solely on the ground that they are of the same or similar character." See V.R.Cr.P. 14(b)(1)(A).

Multiple offenses may be joined in one information or indictment when the offenses "(1) are of the same or similar character, even if not part of a single scheme or plan; or (2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." V.R.Cr.P. 8(a). When the "offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses." V.R.Cr.P. 14(b)(1)(A) (emphasis added). Thus, the court has considerable discretion in determining whether to sever for trial offenses...