State v. Lipka

Decision Date01 November 2002
Docket NumberNo. 99-466.,99-466.
PartiesSTATE of Vermont v. Bernard R. LIPKA.
CourtVermont Supreme Court

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

Robert Appel, Defender General, and Anna Saxman, Appellate Attorney, Montpelier, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

Defendant Bernard Lipka appeals from a judgment of conviction, based on a jury verdict, of two counts of sexual assault of a minor in violation of 13 V.S.A. § 3252(a)(3), and one count of lewd and lascivious conduct with a child in violation of 13 V.S.A. § 2602. Defendant contends the trial court committed reversible error by: (1) granting a special seating arrangement for a child witness in violation of defendant's Sixth Amendment right to confrontation; (2) admitting evidence of prior sexual misconduct; and (3) refusing to admit the videotape of defendant's police interview. We agree with defendant's first claim of error and find that the error was not harmless. We also agree that the evidence of prior sexual misconduct was not admissible on the grounds asserted by the State. Accordingly, we reverse and remand.

The sequence of events in the investigation and trial was as follows: Defendant and J.C. became lovers in the early fall of 1997. J.C. lived in an apartment in Burlington with her twin daughters, M.C. and K.C., who were seven years old at the time. When an apartment below J.C.'s became vacant later in the fall, defendant rented it. The girls were sometimes permitted to visit defendant in his apartment, and defendant would occasionally babysit for them.

On Halloween night 1997, J.C. refused to allow M.C. to go trick-or-treating because she had gone to a friend's house after school without permission. Defendant offered to watch M.C. while J.C. took her other daughter trick-or-treating. J.C. testified that the next day, while in defendant's car, she "heard the girls talking ... about a shower." When questioned, M.C. told her mother that she had taken a shower with defendant. M.C. said there had been no inappropriate touching—she washed defendant's back and he washed hers. J.C. asked defendant about the incident that evening. According to J.C., defendant claimed that he and M.C. may have passed each other while he was getting into the shower and M.C. was getting out, or vice versa, but that they had not actually showered together.

Following this conversation, J.C. did not permit defendant to be alone with her children. She stopped seeing defendant romantically several days after New Year's Eve 1998. The following July, J.C. heard one of her daughters make a comment about "sucking on private parts." Describing herself as "stunned," she talked with M.C. alone. As J.C. recalled, "I let her know that she wasn't in trouble.... And she reluctantly told me that they were talking about sucking on [defendant's] private parts. That this was something that had happened."

A few days later, according to J.C., M.C. further revealed that sexual contact had occurred between her and defendant on a number of occasions, and that she and defendant "had taken pictures of their private parts." M.C. told her mother that these events had occurred "when she was supposed to be at the Boys & Girls Club." J.C. called the police to report the allegations of sexual misconduct. As a result, M.C. was interviewed at an office of the Department of Social and Rehabilitation Services (SRS) by an SRS worker and a policeman, at which time she described her sexual activity with defendant.1

M.C. stated in the interview that between the time defendant moved into his apartment and July of 1998, she sucked on defendant's penis five or six times, he placed his fingers in her vagina many times and she rubbed his penis with her hands more than ten times, possibly as many as seventy times. M.C. described an incident in which she and defendant showered together: First, she played with defendant's penis outside the shower. Then, she entered the shower while defendant was in it waiting for her. They soaped each other, and she again played with his penis. M.C. also recalled one occasion on which she and defendant took nude photographs of each other in defendant's laundry room. She stated that the photograph she took of defendant did not come out. M.C. also stated that she and defendant had touched each other's private parts while they were lying on a couch in her apartment with a blanket covering them, while her mother and sister were in another room.

Defendant was later questioned by three police detectives, including the officer who interviewed M.C. They talked for approximately one hour in the detectives' vehicle. The detectives recorded the conversation without defendant's knowledge. The officer who interviewed M.C. testified that defendant denied having oral sex with M.C., but admitted that it was possible that M.C.'s hand had accidentally touched his penis while she was getting into his shower and he was getting out. Defendant also told the detectives that he had gone to the store with M.C. to buy her candy "before we took the shower." Defendant described another incident in which he was playing with the girls when they allegedly pulled down his pants and M.C. reached up and grabbed his penis.2 Defendant denied that he and M.C. had taken photographs of each other. A search warrant executed that same day resulted in the discovery of an under-exposed Polaroid photograph depicting a man wearing camouflaged pants, such as those habitually worn by defendant, displaying his erect penis.3

The State charged defendant with three counts of sexual misconduct, all involving M.C. and all involving conduct occurring between September 1997 and June 1998. The first two counts charged defendant with child sexual abuse, a crime for which the maximum punishment is life in prison, for (1) inserting his fingers in the vagina of M.C., and (2) bringing his penis in contact with the mouth of M.C. The third count charged him with lewd conduct with a child by having contact between the hand of M.C. and the penis of defendant. Although this charge also involved a felony, the maximum punishment was only five years in prison, far less than that of the first two charges.

The State moved to introduce evidence of uncharged sexual conduct with M.C. over the expanded time frame. The trial court granted the State's motion, finding that the prior bad act evidence was "admissible to show the `situational context' for the abuse of M.C. by her mother's boyfriend."

The State also moved to admit evidence that defendant had similar sexual contact with his six-year-old daughter, R.L., and a third victim, A.G., the seven-year-old daughter of another girlfriend.4 The court granted the motion in a written order, finding that the evidence of defendant's prior bad acts was "clearly relevant to the State's theory of the case, not only to show absence of mistake, intent and motive, but also to demonstrate opportunity to commit the offenses." The court noted that when interviewed by the police, defendant "suggested that there might have been accidental sexual contact between [him] and M.C. during a shower incident." Hence, the court found that the prior bad act evidence was "directly related to a disputed issue in the case" and "clearly bears on Defendant's claims of accident or mistake." Additionally, the court found that "[t]he repetitive series of sexual abuse of young girls in the same or similar settings shows a common scheme or plan by Defendant and therefore is highly probative as to his intent to commit the acts alleged."

The evidence consisted of the testimony of six persons: the officer who interviewed M.C., J.C., defendant, R.L., R.L.'s mother (defendant's ex-wife) and defendant's father. M.C. testified by video deposition, and a videotape of her statement to the police officer and the SRS worker was also admitted. The remaining exhibits consisted of the Polaroid camera, a film box, the Polaroid photo described above, camouflaged pants, and the search warrant under which the pants were obtained. M.C.'s description of the incidents alleged in the charge was graphic and largely consistent with her earlier statement.

Defendant testified at trial. He denied all of the sexual acts alleged by M.C. He did not claim accident or lack of intent as a defense. He did admit the contact as he left the shower on Halloween, but his description of the shower incident was not remotely similar to the incident described by M.C. Neither in his opening nor in his closing did defendant's counsel argue that defendant committed any of the acts alleged but did not have the criminal intent. Nothing in his examination or cross-examination of witnesses supported such a claim.

Over objection, R.L. testified at trial. She described an incident that occurred in her paternal grandparents' home about eighteen months before the charged offenses in which defendant touched her vagina while they were watching television with R.L.'s older brother. The court later instructed the jury that R.L.'s testimony, if believed, was to be considered "for a limited purpose only ... that defendant is capable of taking the chance of having a lewd contact with a child in the presence of another person ... [or] in determining whether any contact between the Defendant's penis and [M.C.'s] hand was accidental or intentional on Defendant's part." In connection with R.L.'s testimony, her mother, defendant's former wife, testified that she learned about the incident when R.L. disclosed it at the day care center, that the incident brought her in contact with the police, and that, since the incident, defendant has had no visitation with his daughter. Also, defendant's father testified that he was in the room when the alleged touching occurred and did not see it happen.

The jury returned a guilty verdict on all counts. De...

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