State v. Cloutier

STATE_V_CLOUTIER.93-623; 163 Vt 598; 656 A.2d 633

[Filed 15-Dec-1994]

                           ENTRY ORDER

                 SUPREME COURT DOCKET NO. 93-623

                       OCTOBER TERM, 1994


State of Vermont             }         APPEALED FROM:
                             }
                             }
     v.                      }         District Court of Vermont,
                             }         Unit No. 2, Addison Circuit
Ronald L. Cloutier           }
                             }         DOCKET NO. 193-4-93Ancr


        In the above entitled cause the Clerk will enter:


 Defendant appeals from a jury conviction under 13 V.S.A.  2602 (lewd
conduct with a child).  Defendant contends that (1) the trial court erred
when it denied his motion to introduce the child's deposition in its
entirety, and (2) there was insufficient evidence to prove defendant was
capable of forming an intent to appeal to his sexual desires, or that
defendant wilfully acted with such intent.  We affirm. 

 Defendant, a trusted friend of the victim's family, babysat the
five-year-old child several times a week.  Defendant worked nights and often
napped with the child in the afternoon.  This case arose when the child told
her aunt and her mother that defendant rubbed her during their naps together
and that she no longer wished to take naps with him. 

 Defendant deposed the child and introduced portions of the deposition into
evidence for purposes of impeaching and contradicting the child's hearsay
statements admitted under V.R.E. 804a.  The court did not admit the
deposition in its entirety, but allowed defendant to read parts of the
deposition into evidence during cross-examination of the child. 

 The child's deposition is not admissible under V.R.E. 804a.  V.R.E. 804a
provides a hearsay exception for statements by putative victims ten years of
age or younger after certain criteria are met.  State v. Weeks, 160 Vt. 393,
399, 628 A.2d 1262, 1265 (1993).  Statements made in preparation for a legal
proceeding are not admissible under this rule.  Id.; V.R.E. 804a(a)(2).  This
rule allows a child victim's early statements, which often are regarded as
highly trustworthy, to reach the jury when there is little risk of
fabrication.  Reporter's Notes, V.R.E. 804a.  The deposition was taken in
preparation for trial, nearly seven months after the alleged acts took place.
 Introduction of the child's deposition violates the rule.  See State v.
Blackburn, 161 Vt. ___, ___, 643 A.2d 224, 226 (1993) (excluding child
hearsay if 

 

requirements under V.R.E. 804a not satisfied). 

 Nonetheless, defendant argues that the purposes and policies underlying the
rule compel admission of the entire deposition.  Specifically, defendant
argues that admission under V.R.E. 804a is compelled by defendant's right to
confrontation.  He contends that, due to the child's immaturity and the
nature of her testimony, it was necessary for the jury to hear the entire
deposition before he could properly impeach the child.  Defendant
cross-examined the child in court, read portions of the deposition and
pointed out inconsistencies in the child's testimony to the jury.  We fail to
see any infringement of defendant's right to confront the child witness. 

 Defendant next contends that there was insufficient evidence to prove that
he was conscious during the acts of fondling.  Defendant claims that the
uncontroverted evidence unequivocally established that he was asleep when the
sexual activity took place and that, because he was not conscious, he could
not form, or act with, the requisite intent for the crime. When examining the
sufficiency of evidence in criminal cases, we "must view the evidence in the
light most favorable to the State and will uphold the judgment unless there
was no credible evidence justifying a guilty verdict."  State v. Warner, 151
Vt. 469, 471, 560 A.2d 385, 387 (1989).  Evidence of a lewd motive is often
circumstantial, and can be inferred from the circumstances surrounding the
act.  State v. Welch, 159 Vt. 272, 276, 617 A.2d 427, 430 (1992).  Further,
the wilful nature of defendant's actions may also be proven circumstantially.
State v. Audette, 128 Vt. 374, 379, 264 A.2d 786, 789 (1970). 

 Defendant relies upon the child's deposition and testimony to prove that he
was asleep. The child stated that she knew defendant was asleep because she
heard him snoring.  She also indicated, however, that defendant did not snore
all the time.  She was not sure if defendant always was asleep when he
touched her.  The child's testimony alone does not prove whether defendant
was conscious or awake when he touched the child because it is unclear
whether the child could determine unequivocally when someone was sleeping or
merely appearing to be asleep. 

 The circumstances surrounding the act, however, indicate that defendant was
conscious. Defendant and the child frequently napped together under the bed
covers, despite the fact that he had three or four hours to nap by himself
before working in the evening.  The child described the touch as a hard
rubbing that was painful at times, and she indicated that the touching
occurred multiple times.  Hence, the jury could readily infer from the
circumstances surrounding the act and the evidence concerning the act itself,
that defendant acted wilfully to arouse, appeal to or gratify his sexual
desires.  There is credible  evidence to justify the verdict. 

 Affirmed. 

                           FOR THE COURT:

                           ______________________________________
                           Frederic W. Allen, Chief Justice
                           _______________________________________
                           Ernest W. Gibson III, Associate Justice

                           _______________________________________
                           John A. Dooley, Associate Justice

                           _______________________________________
                           James L. Morse, Associate Justice

                           _______________________________________
                           Denise R. Johnson, Associate Justice

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