State v.
Hammond, 2012 VT
48
Move along, folks. This one is strictly for the criminal bar. It is also graphic; so keep the kids away.
The facts are as follow. Along with other family members, Defendant
lived with his Stepdaughter. One day,
when Stepdaughter was an 18-year-old high school student, she and Defendant
were home together. No one else was
there. Stepdaughter had run a
cross-country race and her legs hurt.
Defendant offered a leg massage.
The leg massage, by the Stepdaughter’s account,
got creepy. She testified that Defendant
inserted one or two fingers in her vagina for about two minutes. Stepdaughter did not immediately report what happened,
but over the next few months began to talk with others about Defendant’s
massage being “awkward” and “uncomfortable.”
Her relationship with Defendant deteriorated. One night, after Defendant and Stepdaughter had
a major argument over a piece of food, Stepdaughter decided to tell her mother
what happened.
Stepdaughter later testified that she told her
mother that the massage was “inappropriate and very uncomfortable.” She also inaccurately told her mother that
Defendant touched her “butthole.” Stepdaughter
stated that she misrepresented this fact because it was too awkward to tell her
mother that Defendant touched her vagina.
Stepdaughter also told a high school teacher about the incident, which
eventually led to police contact. After
the interviewing officer told her that Defendant could get in more trouble for
penetrating her, Stepdaughter denied that Defendant penetrated her. In a follow-up interview with a CUSI Detective, Stepdaughter
also denied penetration but may have repeated the false assertion that said
that Defendant touched her backside.
Defendant then sent a letter to Stepdaughter that
in retrospect appears to be damaging to his position. In particular, Defendant wrote that his
arrest would be “warranted.” Stepdaughter
felt this was an admission and testified that at this point, she just wanted
Defendant to get help. Stepdaughter’s
grandmother also testified that Defendant had admitted to “inappropriate”
contact with Stepdaughter, but he was not more specific.
Stepdaughter requested another CUSI interview
where she told CUSI about the penetration.
Because Stepdaughter heard that Defendant started to deny the incident
and claim that Stepdaughter made up the penetration part due to her mother’s
encouragement, Stepdaughter decided that Defendant deserved punishment.
Defendant was charged with sexual assault. The first trial ended in a hung jury. On the next go-round, the State tacked on a
Lewd & Lacivious charge and Defendant was convicted of both assault and L
& L.
Defendant appealed his conviction on five
grounds:
(1) he should have
been acquitted based on Stepdaughter’s contradictory and otherwise incredible
testimony;
(2) he should get a new trial based on the
same;
(3) the jury instructions were wrong;
(4) the trial court’s
allowance of Stepdaughter’s testimony about her lack of sexual experience violated
Vermont’s Rape Shield Act [link to 13VSA3255]; and
(5) the trial court
shouldn’t have allowed “anecdotal” evidence about the manner in which teenagers
report sexual assault.
The SCOV doesn’t buy any of it.
The standard of review on denial of a motion for
acquittal is “good luck.” Seriously, it
doesn’t take much for the SCOV to uphold a conviction. Defendant argues that Stepdaughter’s
testimony was so contradictory and incredible that it couldn’t be
believed. Here the SCOV reasons, as did
the trial court, that the jury was free to resolve credibility issues in its
discretion. Thus, the testimonial
evidence that Defendant penetrated Stepdaughter is sufficient to sustain both
convictions.
Regarding the new-trial-on-the-same-basis
argument, the SCOV simply concludes that the argument was not properly
preserved for appeal and doesn’t consider it.
Defendant’s jury-instruction arguments are
twofold. First, Defendant argues that
when the jury asked for clarification as to whether the anus qualifies as a
genital opening, the trial court’s response wasn’t sufficiently clear. Essentially, the trial court’s response was
that even if the evidence supported a finding of anal insertion such a
penetration had not been charged.
Because there was no objection made below, the SCOV looks for plain
error only. And it finds none.
Defendant’s next jury-instruction argument is
based on the trial court’s lack-of-knowledge instruction. Defendant argues that the instruction should
have required the jury to make a finding that Defendant knowningly compelled Stepdaughter. Otherwise, Defendant’s reasonable belief in Stepdaughter’s
consent would negate any guilt. No
objection below, and we’re once again in plain-error territory. The SCOV finds no plain error, reasoning that
consent was not an issue in this case.
Because consent was never part of the defense here, the SCOV skips the mens rea analysis (otherwise known as
the guilty mindset, which is what separates I-meant-to-do-it crimes from
whoops-I’m-criminally-reckless crimes).
The SCOV even cites a case-law basis for skipping that analysis. This is probably the most-awesome part of the
opinion from a law review point of view.
I may have spoken too soon. Defendant’s next argument is that the trial
court erred in allowing Stepdaughter’s testimony about her sexual inexperience
because that testimony violated the Rape Shield Act’s prohibition on “prior
sexual conduct” evidence. It’s an
interesting argument, but the SCOV rejects it in short order. Without actually deciding whether evidence of
innocence is excluded under the Rape Shield Act, but assuming that it does, the
SCOV explains that the evidence of “innocence” was elicited by Defendant on
cross-examination and that there was no abuse of discretion in allowing the
evidence. Because the Rape Shield Act is
inapplicable to the manner in which this evidence was introduced, the argument
doesn’t make it to liftoff.
Defendant’s final argument is that the trial
court erred when it allowed expert and non-expert “anecdotal” testimony regarding
delayed and piecemeal reporting in sexual assault cases. Essentially, Stepdaughter’s guidance
counselor, a CUSI officer, and a psychologist offered opinions on why reporting
of sexual abuse can be fractured under certain circumstances. There was no objection made below, and so the
SCOV—you guessed it—reviews only for plain error and finds none.
Regarding the officer and counselor (the
putative non-experts), Defendant argues that these folks weren’t qualified as
experts under V.R.E. 702 (meaning they could offer their opinions) and so their
testimony regarding the general nature of delayed reporting was
inadmissible. The SCOV reasons that both
the officer and counselor had certain experience that could qualify them as
experts and that Defendant did not object below. Accordingly, there was no plain error.
Regarding the “improperly anecdotal” arguments,
the SCOV again finds no error.
Basically, the SCOV reasons that the testimony of all three witnesses
was based on their experiences and that defense counsel below could have
attacked the applicability of the so-called anecdotal evidence to this case and
also could have argued that Stepdaughter’s manner of reporting indicated
fabrication. The SCOV reasons,
therefore, that this testimony was open to attack, and there was no plain error
because, by implication, it was the defense attorney’s fault. Isn’t it always?
Reading between the lines in this case
illustrates the importance of making objections at the proper time and
preserving issues for appeal. Since
Defendant’s first trial ended in a hung jury, defense counsel may have, with
some justification, been expecting a similar result the second time.
In cases like this, it’s nearly impossible for
one to determine the whole truth because the only people who know what really
happened are Defendant and Stepdaughter.
To a large extent, the SCOV will always be reluctant—short of some
showing of substantial error—to set aside or modify the decision of 12 men and
women who sat through the testimony, heard the witnesses, and looked both the
Defendant and his accuser in the eye. In
such cases, the SCOV is only looking for egregious errors that question the validity
of the verdict or represent such heavy thumbs on the scale that the outcome is
unclear. As we tell our clients, you
have the right to a trial. You have the
right to a fair trial. But, you do not
have the right to a perfect one.
Comments
Post a Comment