State v. Voorheis, 2004 VT 10 (Vt. 2/13/2004)

• Decision Date: 13 February 2004
• Docket Number: No. 2002-478, September Term, 2003,2002-478, September Term, 2003
• Citation: 2004 VT 10
• Court: Vermont Supreme Court
• Parties: State of Vermont v. Patrick Voorheis.

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2004 VT 10

State of Vermont v. Patrick Voorheis.

No. 2002-478, September Term, 2003

Supreme Court of Vermont

February 13, 2004

On Appeal from District Court of Vermont, Unit No. 2, Chittenden Circuit Michael S. Kupersmith, J.

Robert Simpson, Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Karen R. Shingler, Burlington, for Defendant-Appellant.

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

AMESTOY, C.J.

¶ 1. Defendant Patrick Voorheis appeals a jury conviction for attempting to promote a lewd performance by a child, in violation of 13 V.S.A. § 2822, and for inciting another to commit a felony in violation of 13 V.S.A. § 7. Defendant claims that the trial court erred in (1) denying defendant's motion for a judgment of acquital; (2) denying motions for mistrial upon a State's witness and prosecutor comments relating to defendant's exercise of his right to remain silent; and (3) admitting hearsay evidence. We affirm.

¶ 2. Defendant was involved in an extra-marital affair with Lori Delisle, a single mother who resided with her two children: nineteen-year-old Jacques and thirteen-year-old Jennifer. Jennifer suffers from developmental disabilities and cognitive limitations, which make her function at the level of a much younger child. At the time some of the relevant events occurred, Jacques's girlfriend, Beth Brandolino, lived in Ms. Delisle's residence as well.

¶ 3. Defendant and Ms. Delisle communicated often via e-mail and through internet chat, or "instant messaging." Ms. Brandolino testified that Ms. Delisle had shown her pictures of Jennifer naked, in her underwear, and in black lingerie. Ms. Delisle told her that she had sent defendant some of the pictures. Ms. Delisle repeated to Ms. Brandolino defendant's comments about Jennifer's body, and stated that she had bought the lingerie and taken those pictures at his request. Ms. Brandolino testified that she was present when Ms. Delisle sent the lingerie pictures to defendant, and was able to observe the "instant messaging" response from defendant. Ms. Brandolino further testified that Ms. Delisle talked about defendant wanting to take Jennifer's virginity, and about having a "threesome" with Jennifer and defendant. Ms. Brandolino testified that she saw a picture of defendant's penis that he had sent addressed to both Jennifer and Ms. Delisle.

¶ 4. Ms. Brandolino testified that, shortly after moving into her own residence in May 2000, she learned from Jacques that defendant was alone with Jennifer. She testified that she was concerned about Jennifer's safety, so she, Jacques and a friend, Sarah French, went to Ms. Delisle's residence. Soon after they entered the house, Jennifer came out of her mother's bedroom. When asked what was she doing there, Jennifer said that she and defendant were lying in bed, that he was rubbing her back and had told her she was beautiful and "a princess." She stated that they went to the bedroom at defendant's suggestion. The child did not seem in distress.

¶ 5. Defendant was charged with use and attempted use of a child in a sexual performance in violation of 13 V.S.A. § 2822, and with incitement of another to commit a felony in violation of 13 V.S.A. § 7. At trial, the State introduced evidence seized from Ms. Delisle's home, including a computer system and discs which stored a number of photographs of Jennifer naked. The computer forensic examination recovered text from "instant messaging" conversations between defendant and Ms. Delisle. An expert witness testified for the State that "instant messaging" is not normally saved into a computer, and that to save it to floppy disks required a concerted effort. The texts of the instant messaging contained very graphic and sexually explicit language. In these conversations, defendant makes comments about Jennifer's appearance, suggests poses and requests more pictures. Defendant and Ms. Delisle discuss a plan to let defendant have his own lewd photo shoot. The plan involved finding a time when neither Jacques nor Ms. Brandolino would be present, and leaving Jennifer alone with defendant, which would allow him to groom the child's pubic's hair, costume, and pose the child in a manner that better displayed her genitals.

¶ 6. Ms. Delisle was subpoenaed to testify. At the time of defendant's trial, she had already been convicted of using her daughter in a sexual performance. She stated that she had taken three nude photographs of Jennifer to educate Jennifer about her body, and that she sent them to defendant to get his advice on how to talk with Jennifer. Ms. Delisle denied that defendant had suggested buying Jennifer lingerie and taking pictures. She claimed she could not recall sending those pictures to defendant, or receiving defendant's naked photograph addressed to both her and Jennifer. Ms. Delisle denied her comments regarding the pictures and defendant's sexual interest in Jennifer. When asked about the chat messages saved in her computer, Ms. Delisle testified that she created a conversation in which defendant suggests giving Jennifer alcohol because she suspected that there were people using her computer without her permission and wanted to see if it would generate a response from them. She also claimed that she had saved and edited other instant messages to put the defendant in a bad light. Ms. Delisle asserted a lack of knowledge or recollection with respect to several relevant events.

¶ 7. Defendant took the stand and denied having seen or known about the pictures until he was criminally charged. He denied making the incriminating statements attributed to him, or having any feelings or sexual interest for the child. Although he admitted that he was alone in the bedroom with Jennifer, he explained that he was using the telephone when she entered the room and that he merely put his arm around her.

¶ 8. At the close of the State's case, defendant sought dismissal of all charges for lack of sufficient evidence. The trial court granted the motion as to the substantive offense of use of a child in a sexual performance, but allowed the case to go to the jury on the charges of inciting and attempt. The jury returned a verdict of guilty on both charges. Defendant's motion for a new trial was denied, and this appeal followed.

¶ 9. Defendant first claims that the trial court abused its discretion by not dismissing the charges of incitement and attempt for lack of sufficient evidence. According to defendant, the only evidence presented was the "instant messaging" text, which was retrieved from Ms. Delisle's computer, and which Ms. Delisle claimed to have edited. Defendant compares this case to State v. Durenleau, 163 Vt. 8, 652 A.2d 981 (1994), arguing that an unsympathetic defendant was found guilty based upon the conjecture and speculation of a jury presented with inflammatory but "scant evidence." We agree with the trial court that the evidence was sufficient to support both verdicts.

¶ 10. In reviewing the denial of a motion for acquittal, this Court views the evidence in the light most favorable to the State. State v. Driscoll, 137 Vt. 89, 100, 400 A.2d 971, 978 (1979). The sole issue is whether that evidence sufficiently and fairly supports a finding of guilt beyond a reasonable doubt. State v. Griswold, 172 Vt. 443, 448, 782 A.2d 1144, 1148 (2001).

¶ 11. The charge of inciting another to commit a felony, 13 V.S.A. § 7, requires the State show that the defendant endeavored "to incite, procure, or hire another person to commit a felony, though a felony is not actually committed as a result of such inciting, hiring, or procuring." The captured instant messaging text offered substantial evidence of defendant's requests to Ms. Delisle to pose her child and take additional pictures for his viewing. The text also contained ample evidence that he had solicited Ms. Delisle's consent to carry on his own lewd photo session. Ms. Brandolino's testimony was consistent with this evidence. There was sufficient evidence for a jury to reasonably conclude that defendant had incited Ms. Delisle to use her daughter in a sexual performance in violation of 13 V.S.A. §2822, and/or to consent to her daughter's participation in a sexual performance violation in violation of 13 V.S.A. §2823. Either act is a felony.

¶ 12. The guilty verdict on the charge of attempt is also fairly supported by the evidence. The State was required to show that defendant intended to use a child in a sexual performance, and that he committed an overt act designed to carry out that intent. See State v. McGee, 163 Vt. 162, 165, 655 A.2d 729, 732 (1995). "The act must advance the actor's conduct beyond mere intent, and reach far enough toward accomplishing `the desired result to amount to the commencement of the consummation.'" Id. (quoting State v. Boutin, 133 Vt. 531, 533, 346 A.2d 531, 532 (1975)). Here, the jury could reasonably infer defendant's intent to commit the charged offense from his electronic conversations with Ms. Delisle planning the photo shoot. The State's evidence of defendant's overt act designed to carry out his intent included testimony that defendant was left alone in the house with Jennifer, just as discussed in the instant messaging, and that he took the child to her mother's bedroom. The State presented evidence of a digital camera seized in Ms. Delisle's bedroom. Finally, the jury heard testimony that defendant and the child were lying in bed when Ms. Brandolino and her companions arrived, and that defendant was rubbing the child's back and flattering her. Viewing that evidence in the light most favorable to the State, the prosecution provided the jury with ample evidence from which it could reasonably conclude that defendant was attempting to use a child in a sexual performance in violation of 13 V.S.A. § 2822.

¶ 13. In arguing that the evidence...