Keep Your Hands to Yourself

By Nicole Killoran

In re A.C., 2012 VT 30 (mem.).

Today’s case involves an evidentiary maze that demonstrates the importance of objecting.  Defendant, A.C., and his co-Defendant, T.W., both high school students, had the terrible idea to tag-team grope a female classmate in the hallway outside science class.  The State routed A.C. and T.W., both juveniles, through the juvenile delinquency system.

The trial court conducted its merits hearing in several parts.  It first consolidated the cases for A.C. and T.W. to hear testimony of the victim and common witnesses.  During victim’s testimony, the defense for T.W. attempted to demonstrate that there had been “inappropriate consensual touching” amongst many students at this time. 

T.W.’s counsel asked whether there had been “some touching going on” involving “other people, not just you; is that correct?”  The State objected, and the trial court sustained the objection, admonishing T.W.’s counsel that the question had nothing to do with T.W.’s actions.  A.C.’s counsel apparently did not push the point or object, and did not question victim about consensual touching between she and A.C. or other students.

The trial court then bifurcated the hearings to hear other testimony, including A.C.’s testimony, separately.  Here again, A.C. failed to object to the testimony of two school employees.  A teacher who escorted victim to the school principal’s office testified that victim stated this was not the first time “the boys” had touched her.  The school’s principal testified that victim stated she was frightened to return to school, and that she had “alluded to the fact” that this had happened before.

Following the hearing, the trial court found that the State had proven A.C.’s conduct to be lewd and lascivious.  After this decision, the State disclosed an interview the police conducted with T.W.  A.C. responded by asking to withdraw his own testimony and use T.W.’s.  Without prompting by either side, the trial court spontaneously struck its previous conclusion that the State had met its lewd and lascivious burden, and held instead that the State had proven the lesser offense of committing a prohibited act under 13 V.S.A. § 2362.  Defendant, A.C., appealed.

On appeal, Defendant declines to challenge the court’s spontaneous decision to reduce his charges, but does take issue with several other evidentiary decisions.  First, Defendant claims that victim was “unavailable to be cross-examined” regarding the statements she made to the teacher and principal after the incident, thus denying Defendant his Sixth Amendment right to confront witnesses against him. 

This argument rests on a rather tricky assumption that the SCOV quickly dismisses.  During the course of the initial consolidated hearing, the trial court found that T.W.’s counsel’s general questioning regarding inappropriate consensual touching in the school was unrelated to T.W.’s conduct.  But Defendant’s counsel apparently took this to be a blanket ban on this line of questioning while victim was on the stand.  Thus, Defendant now argues, victim was unavailable for cross-examination on these statements she supposedly made while in shock and being escorted to the principal’s office.

But Defendant’s argument fails because his counsel never had the wherewithal to raise an objection to the teacher’s and principal’s testimony.  The SCOV does not think that the trial court’s ruling on T.W.’s questions could fairly be interpreted as a blanket ban on that subject, especially where Defendant’s counsel didn’t even try to follow the same line later.  Without an objection, the standard for the SCOV’s review is very low, and they find that the trial court did not violate Defendant’s Sixth Amendment rights with its ruling.

Defendant’s second argument, that the trial court erred in disallowing victim’s testimony regarding other consensual touching, also fails.  The SCOV notes, there was “no ruling to review” where Defendant failed to object or try to elicit testimony on the same point from victim.

Next, Defendant claims that the State neglected to mention—as it is required to under Rule 26—that it may elicit testimony regarding a “prior bad act,” e.g., previous incidents where Defendant and T.W. had attempted to inappropriately touch victim.  But victim testified that she had not previously had any such problems with Defendant touching her, and Defendant’s counsel did not object when the teacher and principal testified that victim had stated otherwise.  Thus, here too, the SCOV finds that the trial court did not err in allowing these testimonies.

Finally, Defendant argues that the evidence did not sufficiently demonstrate that Defendant engaged in lewd and lascivious conduct.  Here the SCOV must take a moment to define this rather vague term, and determines that “lewdness” means undisguised and unconcealed conduct that would be considered immoral or indecent by community standards. 

Here again the SCOV looks at the trial court’s decision with a great amount of deference.  It will uphold the trial court unless no credible evidence supports its conclusion.  The SCOV does not rehash the evidence to address this point, but rather notes that the testimony of victim, teacher, and principal were credible, and all indicated Defendant and his friend stuck their hands up their classmate’s skirt where they weren’t welcome.  The SCOV concludes that the evidence supported the trial court’s conclusion, and upholds it.  Defendant loses his evidentiary scramble of an appeal.

Justice Skoglund writes a separate opinion, concurring with the SCOV but wishing to express alarm at the trial court’s decision to reduce Defendant’s charges of its own volition.  Justice Skoglund advises the trial court that even if the juvenile justice system is driven not by a desire to punish but to rehabilitate, “this is still a judicial system,” and the trial court in a juvenile case cannot lessen the State’s burden of proof. 

Justice Skoglund concludes by wagging her disapproving finger at the trial court, especially its failure to state which “prohibited act” it thought the evidence supported, but without two more votes, this is more approbation than binding dismay.