State v. Oscarson, 2004 VT 4 (Vt. 1/16/2004)

• Decision Date: 16 January 2004
• Docket Number: No. 2001-055, March Term, 2002,2001-055, March Term, 2002
• Parties: State of Vermont v. Elsie Oscarson
• Court: Vermont Supreme Court

Page 1

2004 VT 4

State of Vermont v. Elsie Oscarson

No. 2001-055, March Term, 2002

Supreme Court of Vermont

January 16, 2004

On Appeal from District Court of Vermont, Unit 2, Chittenden Circuit, Edward J. Cashman, J.

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

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse¹, Johnson, Skoglund, JJ. and Allen, C.J. (Ret.), Specially Assigned

JOHNSON, J.

¶ 1. Defendant Elsie Oscarson appeals from her conviction of two counts of aggravated sexual assault against two of her children. She argues that the trial court erred in (1) admitting hearsay testimony of one of the putative child victims even though that child was not "available to testify in court" as required by Vermont's child hearsay statute, V.R.E. 804a(a)(3); (2) admitting evidence concerning defendant's alleged abuse of a child who was not a putative victim of the charged crimes; and (3) allowing improper expert witness testimony. We reverse the conviction for the child who was not available to testify, but affirm the other conviction.

¶ 2. Defendant is the mother of three minor children, Joey, Jesse, and Brittany. In late 1994, defendant enrolled the children in daycare. At the time, Jesse was three years old, Joey was four, and Brittany was an infant. At school, Jesse and Joey showed signs of severe neglect, including hunger, poor hygiene, inadequate winter clothing, socialization problems, and excessively foul language. Both boys suffered frequent nightmares and exhibited extreme self-mutilative behavior.

¶ 3. One day in February 1995, Joey had an severe temper tantrum after arriving at school, and, when he finally calmed down, told his teachers that his mother had touched him "down there" but that he was not allowed to tell. Around the same time, Jesse arrived at school unable to sit down, and complained that "my bum-bum hurts" and that "mommy hit me with a hammer." His teachers observed a deep bruise on his buttocks.

¶ 4. The day care staff repeatedly reported to state officials that they believed the children were being neglected and abused. Finally, in July of 1995, the boys were removed from defendant's home and placed in temporary foster care, each with one of his teachers. Shortly thereafter, Jesse and Joey told their foster parents that defendant had sexually abused them by performing oral sex on them, and forcing them to perform oral sex on her. The children related similar incidents of sexual abuse to their doctors: Jesse to Dr. Joseph Hagan, a pediatrician, and Joey to Dr. Lee Rosen, a clinical psychologist.

¶ 5. In January 1996, defendant was charged with two counts of aggravated sexual assault. First, however, the State acted to terminate defendant's parental rights. In that proceeding, the family court held that the children's hearsay statements were admissible as evidence pursuant to V.R.E. 804a(a) (hearsay exception for putative victims of abuse, neglect, or sexual assault who are under age ten).² The family court terminated defendant's parental rights over all three children, and she did not appeal either the evidentiary rulings or the final decision. In May 1996, the State notified defendant that it also intended to offer the children's hearsay statements pursuant to V.R.E. 804a(a) in the criminal proceedings. Defendant, in turn, filed a motion seeking to depose and cross-examine the children regarding the hearsay statements.

¶ 6. In December 1998, the district court scheduled a hearing to determine the admissibility of the children's hearsay statements under V.R.E. 804a(a) and 807. At the hearing, the parties agreed to abide by the 1996 family court decision admitting the same hearsay statements under Rule 804a(a) "as the law of the case." The parties also agreed that, if the children were compelled to testify, their testimony would be taken by closed-circuit television or videotape pursuant to Rule 807. The court adopted the parties stipulation that the children's hearsay statements were admissible under Rule 804a(a), but ordered that any recorded testimony would have to be taken "contemporaneous with trial."

¶ 7. In July, 1999, the parties pursued an alternate arrangement to videotape the children's testimony prior to trial pursuant to V.R.E. 807(d) (recorded testimony). Because of a disagreement as to whether pre-recording the children's testimony would extinguish defendant's right to call the children at trial for cross-examination, defense counsel declined to proceed on that date. At an August 1999 status conference regarding the dispute, the State pointed out that the children had already been deposed and argued that they should not have to testify twice more — once before trial by videotape, and again at trial. Defense counsel argued that the children should testify "contemporaneous with the trial," rather than on videotape before trial, because there was a chance that they would not need to testify at all. The court eventually stated, "If [Rule 807] says it's done a certain way, we'll do it that way. If the rule doesn't speak as to the way it's done, then I would say we'll do it at trial, unless there's a reason for doing it otherwise."

¶ 8. The issue lapsed after the parties entered a tentative plea agreement. But when that effort failed just days before trial, it resurfaced. Then, on the Friday before trial, defense counsel filed a written request asking the district court to "make arrangements" to have the children testify by closed-circuit television. The letter asserted that the previous district court judge had ordered this procedure in the event that the children were to testify at trial and, because his client definitely wanted the children to testify, "the arrangements will have to be made." The State responded that it was defendant's responsibility to secure the children's attendance and that it would provide only information to assist defendant in subpoenaing the children.

¶ 9. The next day, defense counsel indicated that he had located and subpoenaed Joey but could not find Jesse. Jesse had been adopted and was living in Texas; he was camping with his adopted mother in Arizona during defendant's trial. Defense counsel objected to admission of Jesse's hearsay testimony on grounds that the State bore the burden of producing Jesse under Rule 804a(a)(3), and unless the State produced him, his hearsay statements should be excluded. The court overruled the objection. After the state rested, with Jesse's whereabouts still unknown, defense counsel asked the court to strike Jesse's hearsay statements because the State had not made him "available to testify in court" as required by Rule 804a(a)(3). The court again rejected this argument.

¶ 10. A jury convicted defendant of aggravated sexual assault upon each child. She was sentenced to thirty-five years to life on each count, to be served consecutively, with the sentence for abuse of Jesse suspended. This appeal followed.

I. Availability

¶ 11. Defendant first argues that it was error to admit Jesse's hearsay statements because the State failed to make Jesse "available to testify in court or under Rule 807" as required by Vermont's child hearsay statute, V.R.E. 804a. Defendant maintains that under V.R.E. 804a(a)(3) the State bore the burden of producing Jesse for trial, and its failure to do so after the defense requested to cross-examine Jesse rendered his hearsay statements inadmissible. To the extent that Jesse's out-of-court testimony is not otherwise admissible as nonhearsay or under another hearsay exception, we agree.

¶ 12. A child's hearsay statements are admissible under Rule 804a(a) only if the court finds that: (1) the statements are offered in a criminal proceeding in which the child is a putative victim of sexual assault, and the statements concern the alleged crime; (2) the statements were not taken in preparation for a legal proceeding; (3) the child is available to testify in court or under Rule 807; and (4) the time, content, and circumstances of the statements provide substantial indicia of trustworthiness. V.R.E. 804a(a)(1)?(4). Either party may compel the hearsay declarant to testify by filing a motion pursuant to V.R.E. 804a(b).

¶ 13. The trial court has great discretion in admitting or excluding evidence under Rule 804a, and we will not reverse such decisions unless there has been an abuse of discretion resulting in prejudice. State v. LaBounty, 168 Vt. 129, 136, 716 A.2d 1, 6 (1998); see also State v. Fuller, 168 Vt. 396, 404, 721 A.2d 475, 481 (1998) (admissibility of evidence is committed to discretion of trial court; Court will reverse only upon showing of abuse of discretion); cf. State v. Gallagher, 150 Vt. 341 348, 554 A.2d 221, 225 (1988), cert. denied, 488 U.S. 995 (1988) (applying "clearly erroneous" standard of review to trial court's finding that child sexual abuse victim's hearsay statements were "trustworthy" as required by V.R.E. 804a(a)(4)).

¶ 14. In this appeal defendant does not contest the admissibility of Jesse's hearsay statements under V.R.E. 804a(a)(1),(2), and (4). Thus, the sole question facing the Court is whether Jesse, who was not present at trial, was still "available to testify" within the meaning of 804a(a)(3). The parties advance two interpretations of the phrase "available to testify." Defendant argues that the phrase requires that the witness be physically present so that the defense, if it so elects, can cross-examine the child at trial. Under this scheme, defendant contends it is the State's burden to produce the child.

¶ 15. The State views the term "available" as the converse of "unavailable" in Rule 804. See V.R.E. 804(a) (witness is "unavailable" if exempted from testifying or does not testify due to privilege, refusal to testify, lack of memory, physical or mental infirmity, death, or physical absence despite...