Monday, July 23, 2012

Left Unsaid



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. 

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