State v. Leggett

• Decision Date: 21 November 1997
• Docket Number: No. 96-249,96-249
• Citation: 709 A.2d 491,167 Vt. 438
• Parties: STATE of Vermont v. Harold LEGGETT.
• Court: Vermont Supreme Court

Page 491

709 A.2d 491

167 Vt. 438

STATE of Vermont v. Harold LEGGETT.

No. 96-249.

Supreme Court of Vermont.

Nov. 21, 1997.

Motion for Reargument Withdrawn Feb. 2, 1998.

Scot Kline, Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for plaintiff-appellee.

Robert Appel, Defender General, and Anna Saxman, Appellate Attorney, Montpelier, for defendant-appellant.

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

AMESTOY, Chief Justice.

Defendant Harold Leggett appeals revocation of his probation for violation of a condition prohibiting contact with children under the age of sixteen without the approval of his probation officer. Defendant argues that the court erred by allowing introduction of hearsay testimony about defendant's actions without first making a finding and stating reasons as to whether there was good cause to admit the testimony. We affirm.

In February 1993, defendant pled nolo contendere to a charge of sexual assault against his stepdaughter, a minor. The court sentenced defendant to serve twenty-two months to twelve years with all suspended except twenty-two months. Defendant was given credit for time served and placed on probation.

In February 1994, defendant was sentenced to an additional one year to serve upon findings that his disruptive behavior in sex-offender group treatment and his nonpayment of counseling costs violated conditions of his probation. Defendant returned to the community in September 1994. Following unsubstantiated reports that defendant was having contact with children under age sixteen in 1994 and 1995, defendant's probation officer received a substantiated report in January 1996. She filed a probation-violation complaint alleging that defendant violated the condition of his probation prohibiting contact with children under age sixteen without approval of his probation officer. The probation officer recommended that the court impose defendant's underlying sentence.

At two days of hearings on the merits, eight witnesses testified, including defendant and a minor who was under age sixteen at the time of the alleged contact. Following the hearings, the court made oral findings and concluded that defendant had violated a condition of his probation by having contact with children under sixteen. The court sentenced defendant to serve the underlying sentence of twenty-two months to twelve years with credit for time served.

On appeal, defendant claims that he was substantially prejudiced at the probation-revocation hearing by the introduction of hearsay testimony without which, he argues, "the court may not have found a violation or sentenced [him] so harshly." Defendant's principal objection is to the testimony of a Social and Rehabilitation Services worker who interviewed the seven-year-old girl with whom defendant allegedly had contact. ¹ Defendant correctly contends that our holding in State v. Austin, 165 Vt. 389, 685 A.2d 1076 (1996), requires the trial court in a probation-revocation hearing to make an explicit finding and state its reasons on the record as to whether there is good cause for dispensing with a probationer's confrontation right and admitting hearsay into evidence. Id. at 396, 685 A.2d at 1081. The trial court made no such finding here. ²

We were recently obligated to vacate a probation-revocation decision and remand for additional findings because, notwithstanding sufficient nonhearsay evidence for the court to find that the defendant violated at least one condition of probation, the court did not specify which conditions of probation were violated and how they were violated. See State v. Styles, 166 Vt. 615, ----, 693 A.2d 734, 735 (1997). Consequently, we were unable to determine whether the trial court relied on impermissible hearsay in revoking defendant's probation. Id.

Here, the trial court identified the condition of probation and specified how it was violated. The court's revocation of probation must be affirmed if, without considering the hearsay, there was "sufficient evidence" in the record to support the trial court's conclusion. In re B.S., 163 Vt. 445, 454, 659 A.2d 1137, 1143 (1995); see United States v. Frazier, 26 F.3d 110, 114 (11th Cir.1994) (admission of hearsay evidence in probation-revocation hearing was harmless error because record contained sufficient admissible evidence to support district court's decision). ³ Notwithstanding defendant's assertion that hearsay testimony admitted without the requisite Austin finding was of controlling significance to the court's decision to revoke probation, there was ample direct evidence to support the conclusion that defendant had had contact with children under age sixteen in violation of the terms of his probation. See State v. Sanborn, 155 Vt. 430, 436, 584 A.2d 1148, 1152 (1990) ("Findings fairly and reasonably supported by any credible evidence must stand."). ⁴

H.D. testified that while she was under age sixteen she visited the home of seven-year-old S.L. when defendant was present. She also testified that S.L. called defendant "uncle," a fact admitted by defendant in his own testimony. H.D. stated that defendant did not leave when she visited the house, although she was under age sixteen on both occasions where she recalled seeing defendant. The trial court also had the benefit of an affidavit signed by H.D. that described her contacts with defendant. Unlike Austin, where we struck a finding supported only by an improperly admitted affidavit, see Austin, 165 Vt. at 397-98, 685 A.2d at 1082, here the court's finding that defendant was present while children were present is supported by H.D.'s testimony and her admissible affidavit.

There was also sufficient evidence--without reliance on hearsay testimony--to support the court's finding that defendant attended a superbowl party where seven-year-old S.L. was present. The trial court found that defendant did not leave the party despite the presence of S.L., except to respond to an emergency call from work. The court further found that defendant returned to the party without determining whether the child was still there. Each fact central to the court's finding relating to the "superbowl contact" was elicited from defendant on cross-examination.

There was more than a preponderance of admissible evidence to support the trial court's determination that H.D.'s contacts with defendant and defendant's presence at the superbowl party with S.L. were violations of the condition of probation prohibiting contact with children under age sixteen. See 28 V.S.A. § 302(a)(4) (court may revoke probation after violation is established by preponderance of evidence). Either determination satisfies the requirement that "[t]he trial court must first make a factual determination of what actions the probationer took, and then make 'an implicit legal conclusion that certain acts constitute a violation of the probationary terms.' " Austin, 165 Vt. at 398, 685 A.2d at 1082 (quoting Resper v. United States, 527 A.2d 1257, 1260 n. 1 (D.C.1987)).

Defendant argues, however, that even if direct evidence supports the finding that he did have contact with children under age sixteen, it is only the hearsay statements of S.L. that can be construed as the evidentiary basis for the court's characterization of defendant's contacts with the child as "numerous" and "not inadvertent." The language of the trial court with which defendant takes issue came at the imposition of sentence, during which the court made the following statement: ⁵

The Court is persuaded that, Mr. Leggett, these have not been inadvertent contacts. The[y] have been numerous. The Court finds from the evidence, and I think, probation is not working and that, if there is going to be release, it ought to be under parole and the close supervision that parole allows.

Despite defendant's repeated claim that characterization of his contacts with children under age sixteen as "numerous" and "not inadvertent" could have been predicated only upon S.L.'s hearsay statements, a review of the transcript reveals an abundance of direct evidence that amply supports the court's statement. This is especially true when one understands the "arrangement" between defendant and S.L.'s mother, a relationship that the trial court had the benefit of examining when weighing their testimony. ⁶

S.L.'s mother testified that she saw defendant four or five times each week and that defendant stayed overnight at her house or she stayed overnight at his house. Defendant testified that S.L.'s mother cooked his supper and did his laundry.

The mother testified that defendant's twin brother is the father of S.L. and that she and S.L. occasionally visit the father in jail where he is serving time for sexual assault on a minor whom defendant also assaulted. The mother stated that she does not believe that either defendant or his brother sexually assaulted children. She testified that she maintains this belief even though defendant admitted to sexually assaulting his stepdaughter. She also acknowledged that she wrote checks for defendant's sex-offender counseling.

Although defendant and S.L.'s mother testified that they made child-care arrangements such that S.L. was never present when defendant was with S.L.'s mother and that when defendant and S.L. came in contact, immediate steps were taken to absent one from the other, the trial court was not required to find their testimony credible. See State v. Parker, 139 Vt. 179, 182, 423 A.2d 851, 852 (1980) (trier of fact has sole determination concerning weight of evidence, credibility of witnesses, and persuasive effect of testimony). The court in fact had sufficient basis to doubt the veracity of the testimony of both the mother and defendant. The mother testified that she saw defendant four or five times each week after she finished work at 9:00 or 11:00 p.m. or on her days off. The visits ranged from less than an hour to...