State v. LaBounty

• Decision Date: 17 April 1998
• Docket Number: No. 96-180,96-180
• Citation: 716 A.2d 1,168 Vt. 129
• Parties: STATE of Vermont v. Aime LaBOUNTY.
• Court: Vermont Supreme Court

Page 1

716 A.2d 1

STATE of Vermont v. Aime LaBOUNTY.

No. 96-180.

Supreme Court of Vermont.

April 17, 1998.

Motion for Reargument Denied

June 29, 1998.

William H. Sorrell, Attorney General, David Tartter, Assistant Attorney General, and Laurie LeClair, Special Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Charles S. Martin and Reggie Oh, Law Clerk (On the Brief), of Martin & Associates, Barre, for Defendant-Appellant.

Before DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

MORSE, Justice.

Defendant Aime LaBounty appeals his conviction of aggravated sexual assault against two preschool girls in violation of 13 V.S.A. § 3253(a)(8). He contends the trial court erred by (1) denying his motion for severance; (2) admitting the victims' hearsay statements under V.R.E. 804a; (3) permitting the introduction of taped-recorded interviews of the victims; (4) not granting a mistrial based upon the prosecutor's improper questioning of a witness; (5) excluding an expert witness's testimony concerning sexual offenders; (6) denying a motion for acquittal based upon insufficient evidence; and (7) relying upon evidence of a prior uncharged sexual offense at sentencing. We affirm.

Defendant's wife, Lucy LaBounty, operated a day-care facility out of the home she shared with defendant in St. Johnsbury. One day in February 1995, Mrs. LaBounty left the daycare from 12:30 to 3:00 p.m. to deliver a cake to a "Home Dem" meeting, leaving four-year-old B.M. and two other children in the care of defendant. Later that day, when B.M.'s mother Allison Bean picked her up, B.M. immediately exclaimed, "Mommy, don't tell my daddy or I'll never see him again." When Ms. Bean asked what she meant, B.M. explained, "I sucked [defendant's] peepee today." On further questioning the child elaborated as follows: "[H]e put it in my throat and it choked me and it hurt me." Ms. Bean asked B.M. where Lucy LaBounty was at the time. She responded that Mrs. LaBounty was taking a cake to a friend's house. B.M. also disclosed that defendant had told her not to tell, or she would never see her father again.

Ms. Bean immediately took B.M. to the house of a friend, Diane Bashaw. B.M. recounted the same story she had told her mother, adding that the incident had occurred on the couch in the living room of defendant's house. Later that evening, Ms. Bean related B.M.'s disclosures to her friend, Tammy Jones, whose four-year-old daughter S.J. had attended the LaBounty's daycare between May and October of 1994. Alarmed, Ms. Jones asked S.J. whether defendant had ever showed her his "peepee." She replied "no," then immediately stated, "he made me suck it." S.J. told her mother that the other children were outside at the time of the incident, and that defendant had kept her inside because he didn't want her to catch a cold. She explained that she had not said anything earlier because defendant told her not to. The following morning, S.J. came into her mother's bedroom and told her that "yucky stuff" from defendant's peepee had "come out in her mouth." Her mother had not asked S.J. any questions before this disclosure.

The following day, B.M. was interviewed by an investigator for the Department of Social and Rehabilitation Services, Fran Neville, and an investigator for the State Police, Robert Van Damm. B.M. recounted the same events to the investigators that she had spontaneously told her mother the day before, explaining that defendant had "stuffed his whole peepee" in her mouth. She recounted where the incident had occurred and where Lucy and the other children were at the time. She also described the color of defendant's clothes at the time of the incident. She denied that he had removed any of his clothes, but volunteered that he had "unzipped his pants."

S.J. was also interviewed by an SRS caseworker, Katherine Bergeron, along with officer Van Damm. Although hesitant and unresponsive to many of their initial questions, S.J. ultimately repeated the story she had earlier told her mother, adding that the incident had occurred in the LaBounty's bathroom, and that defendant had wiped the "yucky stuff" off with his shirt.

Mrs. LaBounty testified that she regularly left the children in defendant's care when she went to meetings or appointments, and confirmed that she had left the house to deliver a cake at the time of the incident involving B.M. Defendant also testified, acknowledging that he was with B.M. on the date in question, and that he had spent part of the time on the couch, with B.M.'s head on his lap while she slept.

Defendant was charged with two counts of aggravated sexual assault against B.M. and S.J., in violation of 13 V.S.A. § 3253(a)(8). His first trial ended in a mistrial. Upon retrial, he was found guilty by a jury of both counts and sentenced to two consecutive terms of five to twenty-five years, with all but 90 days of the sentence on the second count suspended. This appeal followed.

I.

Before trial, defendant moved to sever the charged offenses, arguing: (1) that he was entitled to severance as a matter of right under V.R.Cr.P. 14(b)(1)(A), and (2) that severance was necessary as a discretionary matter to achieve a "fair determination" of his guilt or innocence under V.R.Cr.P. 14(b)(1)(B). The trial court denied the motion. Defendant thereafter reasserted the motion at the close of the evidence as required by V.R.Cr.P. 14(b)(4)(C). It was again denied. He renews both claims on appeal.

Two or more offenses may be joined for trial 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 solely on the ground that they are of the same or similar character, the defendant is entitled to severance as a matter of right under V.R.Cr.P. 14(b)(1)(A). State v. Carter, 156 Vt. 437, 440, 593 A.2d 88, 91 (1991). When the joined offenses represent a series of acts constituting parts of a single scheme or plan, the right to severance is not absolute, but turns upon a showing that severance is necessary to "achieve a fair determination" of guilt or innocence. V.R.Cr.P. 14(b)(1)(B); see State v. Johnson, 158 Vt. 344, 351, 612 A.2d 1114, 1118 (1992).

Defendant was not entitled to severance as a matter of right because the charged offenses were properly joined as "acts ... constituting parts of a single scheme or plan." V.R.Cr.P. 8(a)(2). Although separated by a period of months, the assaults evinced a common objective, plan, and method. Each of the assaults was upon a victim of tender years attending the same day-care center; each was made possible by defendant's exploiting his position of trust at the center; each occurred at the day-care center when defendant's wife was not on the premises and defendant was assured of privacy; each was followed by a warning to the child not to tell; and each appeared to follow a common pattern of defendant forcing his penis into the victim's mouth without prelude or warning, and with little or no discussion.

As the trial court observed, the similarities between this case and Johnson "are striking." There, as here, the defendant was accused of taking advantage of a position of trust (camp counselor) to sexually exploit several minors. There, as here, the "offenses were connected to each other in time and space, the profile of the victims, the relationship of the victims to defendant, and the opportunity presented to, and exploited by, defendant." Johnson, 158 Vt. at 351, 612 A.2d at 1118. Thus, we affirmed the trial court's refusal to sever the offenses under V.R.Cr.P. 14(b)(1)(A) as a matter of right, holding that they were "not only the same or similar in character but also ... constitut[ed] parts of a single 'scheme or plan.' " Id.

Defendant notes that unlike Johnson the charged offenses here were separated in time by about four to nine months. We have held that "temporal proximity is a prerequisite to admission in plan or scheme cases" in the context of admitting evidence of prior bad acts under V.R.E. 404(b). State v. Winter, 162 Vt. 388, 396, 648 A.2d 624, 629 (1994). We have also observed that there is no "hard-and-fast" rule regarding time limits, and that "the necessary proximity must vary with the circumstances." Id. at 397, 648 A.2d at 629. Indeed, in Johnson we relied on People v. Epps, 122 Cal.App.3d 691, 176 Cal.Rptr. 332, 337-38 (1981), which involved sexual assaults upon young victims that occurred seven months apart, and State v. Tecca, 220 Mont. 168, 714 P.2d 136, 138 (1986), which concerned a series of sexual assaults against minors over a period of several years. See Johnson, 158 Vt. at 352-53, 612 A.2d at 1119. Moreover, we have recognized that a lapse of time between offenses may occur simply because "a defendant has lacked the opportunity to put a plan into effect." Winter, 162 Vt. at 397, 648 A.2d at 629. That appears to have been the case here. The first victim left the day-care center in October 1994 and thus became unavailable to defendant; several months later, he assaulted another child in the same place, in the same manner, followed by the same warning. We thus conclude that the trial court correctly denied the motion for severance as a matter of right.

We also reject defendant's claim that the trial court erred in refusing to sever the offenses as necessary to assure a "fair determination" of guilt or innocence under V.R.Cr.P. 14(b)(1)(B). It is the defendant's burden to demonstrate that severance is necessary under V.R.Cr.P. 14(b)(1)(B) "by 'substantial evidence of prejudice.' " State v. Venman, 151 Vt. 561, 567, 564 A.2d 574, 579 (1989) (quoting State v. Richards, 144 Vt. 16, 19, 470 A.2d 1187, 1189 (1983)). The decision is committed to the sound discretion of the trial court. State v. Chenette, 151...