Joined or Apart?

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State v. Freeman

2017 VT 95

By: Tim Fair

While summarizing this particular case, several challenges presented themselves:

1.     As a criminal case involving the sexual assault of multiple minors, the facts here are particularly disturbing and don’t really lend themselves to my usual lighthearted analysis.

2.     One of the two legal issues involved in this case is pretty esoteric and can be rather confusing. 

3.     Due to privacy concerns, victims under the age of 18 are only identified in court documents by initials.  Given the fact that this case involves eleven charges involving five different minors, the alphabet soup gets really confusing, really quickly.

  Despite these challenges, we will persevere.  

      As stated above, the defendant, Kai Freeman, was charged with eleven criminal counts, all involving sexual misconduct with minors.  Several of the charges alleged that the defendant had traded marijuana in exchange for sexual favors with several underage girls, while the remaining charges resulted from the defendant’s alleged attempts to do the same with other victims.  Of the five victims, four of them, A.H., K.S., A.L. & S.B., were under the age of sixteen, while one, A.M. was over sixteen but under eighteen.  A jury ultimately convicted Mr. Freeman of ten charges and acquitted him on one. 

            On appeal, Mr. Freeman makes two distinct claims of error.  The first, is that the trial court errored when it refused his pre-trial motion to sever the charges against him.  His second claim is that the State failed to present sufficient evidence against him to sustain a conviction on two of the counts.  Seeing how the insufficient evidence claim is often used as a legal “Hail Mary” and doesn’t require a great deal of in-depth analysis, we’ll begin with the severance argument.

            Rule 8 of the Vermont Rules of Criminal Procedure (V.R.Cr.P.) allows a prosecutor to charge multiple counts on a single charging document, otherwise known as joining, under two circumstances.  The crimes being joined need to either: a) be of the same or similar character, even if they were not part of the same scheme or plan, or b) be based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.  In plain English, they either need to be similar crimes, or all the crimes arising from a single plan or incident.  

            On the defense side, Rule 14(b)(1)(A) of the V.R.Cr.P. allows the defendant the right to move to sever, or break up, multiple counts only if they are alleged to be of the same or similar character.  If the counts are charged together because they all stemmed from the same plan or incident, the defendant does not have the right to request severance, unless the defendant can prove to the court under Rule 14(b)(1)(B) that it is necessary to ensure a fair determination of guilt or innocence.  This is a pretty high burden to meet and requires that the defendant produce a significant amount of evidence.

            Prior to trial, Mr. Freeman attempted to convince the court to sever the charges against him.  He argued that he should have a separate trial for the allegations against each individual victim, for a total of five separate trials.  This makes sense from a defense perspective, seeing how eleven criminal charges being brought all at once might have a negative impact on the jury.  Mr. Freeman’s argument claimed that the charges were being joined because they “were of the same or similar character”, thus allowing him to move for severance.  Mr. Freeman also argued, in the alternative, that severance was appropriate because it was “appropriate to promote a fair determination of the defendant's guilt or innocence”.  The trial court disagreed, finding that the charges had not been joined based on similarity, but rather because they constituted a “common scheme” making them ineligible for severance under Rule 14(b)(1)(A).  As for his second argument, the trial court found that Mr. Freeman did not present sufficient evidence to show that he would be prejudiced by the charges being brought together.  Despite two attempts at renewing his motion, once immediately prior to trial, and again during the post-conviction phase, the court was not persuaded to change its mind.

            On appeal, Mr. Freeman switched tactics.  Rather than rehash the same arguments that were shot down at the trial level, he instead narrowed his argument by claiming that only the charges involving one of the victims, A.M., should have been severed, given the age difference between her and the other victims.  Mr. Freeman’s position was that by charging all the counts together, the State had forced him to present two distinct and inconsistent defenses at trial, ultimately to his detriment.  In a nutshell, he was saying that because A.M. had reached the age of consent, sixteen, he was willing to admit that he had exchanged marijuana for sex with her, but that it was a consensual arrangement.  When it came to the other victims, all of whom were under the age of consent, he had alternatively claimed that none of the alleged acts had ever occurred.  His point was that these “duel” arguments made it more likely that the jury would believe the alleged acts had happened with all of the victims, not just A.M., thus creating prejudice against him, impacting his ability to get a fair trial.  Unfortunately for Mr. Freeman, this argument did not fare any better than his previous ones.

            In its decision, the Court established that by making his new argument on appeal, Mr. Freeman essentially abandoned his previous “same or similar character” argument, leaving only one available avenue for severance.  He would have to convince the Court that the trial judge made a mistake by not granting his original motion to sever under Rule 14(b)(1)(B)’s “to promote a fair determination of the defendant's guilt or innocence.” standard.  In order to do so successfully, Mr. Freeman needed to produce sufficient evidence to definitively demonstrate that prejudice would occur if the offenses remained joined.  Evidence that suggested prejudice might occur would not be sufficient to meet his burden, it needed to be absolutely certain.  The Court determined that Mr. Freeman never met this evidentiary burden, holding that the trial court’s denial of his motion to sever was proper.

            Mr. Freeman’s second claim of error, that the State had not produced sufficient evidence to convict him, was a much more straight-forward analysis for the Court.  As I stated earlier, this type of appellate claim is the legal equivalent of a “Hail Mary”.  It looks pretty impressive, but generally fails to win you the game.  In his brief, Mr. Freeman argued that there was insufficient evidence to convict him on two of the counts brought against him.  In both counts, the Court found the State had offered witness testimony as evidence against the defendant, and if believed by the jury, this testimony was fully sufficient to find him guilty.  The determination of a witness’s credibility always lies with the jury, along with the weight given to the testimony.  It is not up to either the trial judge, or an appellate justice, to second-guess the jury in these matters.  Therefore, the Court found that sufficient evidence had in fact been produced to allow a reasonable jury to find Mr. Freeman guilty.  Once again, the “Hail Mary” fails to connect, and Mr. Freeman’s convictions stand affirmed.