In re A.B.

In re A.B. (99-065); 170 Vt. 535; 740 A.2d 367

[Filed 04-Oct-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-65

                               JUNE TERM, 1999

In re A.B., Juvenile	               }	APPEALED FROM:
	                               }
	                               }
     	                               }	Addison Family Court
	                               }	
	                               }
	                               }	DOCKET NO. 93-11-97Anjv	


             In the above-entitled cause, the Clerk will enter:


       A.B. appeals from a family court finding of delinquency for the
  commission of a lewd and  lascivious act upon a child under sixteen, in
  violation of 13 V.S.A. § 2602.  A.B. contends the  court erred in: (1)
  excluding the testimony of two defense witnesses; and (2) denying a
  post-trial  motion to dismiss.  We conclude that the first claim of error
  has merit and, therefore, reverse.

       The evidence at trial disclosed that A.B., who was fifteen years old,
  lived with his family  in a rural area of Addision County near a duplex in
  which two other families with children  resided.  One of the families had
  three children: two girls, J.P. and A.P., who were thirteen and  twelve
  years old, respectively, and a boy, T.P., who was eleven.  The other family
  had two  children: E.R., a boy of eleven, and D.A.R., a girl of seven.  All
  of the children played together  during the summer of 1997, although less
  so with D.A.R. because she was much younger than  the rest.

       In late October 1997, D.A.R.'s father called the state police to
  report that D.A.R. had  informed him about an alleged sexual assault by a
  boy in the neighborhood.  D.A.R., who was  eight years old at the time of
  trial, testified that some time during the summer of 1997, A.B. had 
  touched her "private" parts.  She responded "yes" when asked on direct and
  re-direct  examination whether A.B. had touched her on the "skin," but on
  cross-examination stated that he  had touched her "on top" of her clothes. 
  She could not say how many times the touching had  occurred, but recalled
  that it took place near a basketball court and a barn located in the
  vicinity  of her house.  She also recalled that A.B. had told her not to
  tell anyone.  She responded "no"  when asked whether she was afraid of A.B. 
  She further denied that anyone had induced her to  make up the accusation.

       Two additional witnesses, D.A.R.'s father and her twelve-year-old
  neighbor, A.P.,  recounted statements that D.A.R. had made to them
  concerning A.B.'s alleged sexual abuse.   The trial court, however, made no
  findings concerning the statements' admissibility under  V.R.E. 804a, and
  observed in its written decision that in reaching its decision it was not 
  necessary to rely on any evidence offered pursuant to V.R.E. 804a.  

       A.P. testified that the children often rode the school bus together. 
  She recalled that  D.A.R.'s demeanor changed when A.B. got on the bus, that
  she became quiet and looked sad.   She also recalled that T.P., her
  eleven-year-old brother, had often been mean to D.A.R., and  had become
  increasingly angry with A.B. as well, frequently teasing him about his
  weight.  She  recounted that she had been called to the office of the vice
  principal, Mrs. Royce, about the  teasing.  According to A.P., the meeting
  with Royce took place about a week after D.A.R.  informed her father about
  the alleged abuse.

 

       A.B. testified on his own behalf.  He denied that he had touched or
  otherwise molested  D.A.R.  He recounted an incident on the school bus in
  which T.P. had called him names and  accused him of sleeping with his
  mother.  He recalled another incident on the bus in which T.P.  and his
  sister, A.P., had accused him of inappropriately touching D.A.R., and had
  attempted to  induce D.A.R. to admit the allegation of abuse.  A.B.
  reported at least one of the incidents to the  vice-principal, Mrs. Royce,
  and to his parents.  He recalled that several days later, D.A.R.  accused
  him of molesting her.  

       The defense attempted to call both Mrs. Royce and A.B.'s father to
  testify about A.B.'s  report of harassment.  The State filed a motion in
  limine seeking to exclude the evidence as  irrelevant.  In her offer of
  proof, defense counsel asserted that Royce would testify that A.B.  came to
  her in early to mid-October and told her that he was being harassed by T.P.
  and A.P.   Counsel explained that the testimony would show the report of
  harassment occurred days before  D.A.R.'s accusation, and that it would
  show a motive for D.A.R. to fabricate the allegation.   More specifically,
  it would buttress the defense theory that T.P. had coerced D.A.R. to
  fabricate  the allegations in retaliation for A.B.'s report to Mrs. Royce. 
  Counsel stated that the father  would testify that after A.B. told him
  about the harassment on the bus, the father called T.P.'s  family.  A
  boyfriend of T.P.'s mother then came to A.B.'s house and made threatening 
  statements, including allegations that A.B. had acted inappropriately
  toward D.A.R. 

       The court was unpersuaded of the relevance of the proffered testimony,
  explaining that  there was "no logical connection between the evidence that
  you wish to offer and the conclusion  that you want the Court to draw." 
  Accordingly, the court excluded the evidence.  In a relatively  summary
  written decision, the court found that A.B. had committed the acts as
  alleged.  In  preparation for the disposition hearing, the court directed
  the Department of Social and  Rehabilitation Services to prepare a
  disposition report, and further ordered a psychosexual  evaluation of A.B.
  by a qualified professional.  Both the psychosexual evaluation and the 
  disposition report expressed doubt as to A.B.'s guilt.  The SRS social
  worker stated that based  upon her interview of A.B., she felt "ethically
  bound to note .  .  . that [A.B.'s] denial of the  offense, in my
  experience, is different from that of a youth just trying to stay out of
  trouble."   The report recommended juvenile probation and individual rather
  than group counseling.  The  authors of the pychological evaluation noted
  that they "share[d] in the doubt" expressed by the  SRS worker.  The court
  ultimately adopted the SRS recommendations at the disposition hearing. 
   
       Based upon the doubts expressed in the SRS report and psychosexual
  evaluation, A.B.  moved to dismiss the case in furtherance of justice,
  under V.R.Cr.P. 48(b)(2) (dismissal  warranted if it will "serve the ends
  of justice").  The State opposed the motion, arguing that it  was
  unwarranted under the multiple factors set forth in State v. Sauve, 164 Vt.
  134, 140-41, 666 A.2d 1164, 1168 (1995).  The court denied the motion in a
  brief written decision.  This appeal  followed.  

       A.B. contends the court erred in excluding the testimony of Mrs. Royce
  and his father.   The trial court enjoys great latitude in decisions to
  admit or exclude evidence, and such decisions  will not be reversed absent
  an abuse of discretion resulting in prejudice.  Gilman v. Towmotor  Corp.,
  160 Vt. 116, 122, 621 A.2d 1260, 1263 (1992).  "In criminal cases, however,
  the broad  discretion of the trial court in evidentiary matters is limited
  by defendant's right to confront  witnesses against him and by the demands
  of due process."  State v. Webster, 165 Vt. 54, 56,  675 A.2d 1330, 1332
  (1996).  A.B. argues here, as below, that the proffered testimony was 
  relevant to show a motive to fabricate the molestation allegations, and
  that the court's ruling  unconstitutionally deprived him of a fair
  opportunity to present his theory of defense.

 

       In  State v. Cartee, 161 Vt. 73, 76, 632 A.2d 1108, 1110 (1993), we
  observed that "[i]n  cases of sexual assault or abuse where the complainant
  is the only witness, the presence of an  ulterior motive for the victim's
  making the accusations is often a critical issue."  Such was the  case
  here.  Although the defense theory concerning the alleged inducement to
  fabricate was not  airtight, the proffered evidence was not irrelevant or
  illogical as the trial court found, or merely  speculative as the State
  argues.  Indeed, the facts lent the theory a veneer of plausibility; there 
  was some evidence that T.P. had harassed A.B. and was generally hostile to
  him, that D.A.R.  was afraid of T.P., that T.P. had vocally attempted to
  persuade D.A.R. to accuse A.B. of  misconduct, and that A.B. had reported
  T.P.'s harassment to the school vice principal, Mrs.  Royce, just days
  before the allegations of abuse became public.  Defense counsel argued 
  plausibly, moreover, that Royce's testimony was not cumulative; there was
  conflicting evidence  as to whether D.A.R. had told her father about the
  alleged abuse before or after A.B. reported  T.P.'s behavior to Royce, a
  timing issue which Royce could have addressed.  Royce could also  have
  elaborated upon the steps which she took to intervene, again a subject
  relevant to the  defense theory that T.P. had induced D.A.R. to fabricate
  the allegations in retaliation for A.B.'s  reporting him to school
  authorities.  

       In a case such as this, where the only direct evidence of abuse on
  which the court  purported to rely was the complainant's testimony, it was
  incumbent upon the court to be  "`particularly cautious in exercising its
  discretion to preclude impeachment evidence offered by a  defendant' due to
  the state and federal constitutional issues implicated in such a decision."  
  Cartee, 161 Vt. at 77, 632 A.2d  at 1111 (quoting State v. Covell, 146 Vt.
  338, 341, 503 A.2d 542, 544 (1985)).  By excluding Royce's account of the
  report of harassment and subsequent  investigation, the court was left with
  an incomplete picture of the defense theory of fabrication.   Thus, our
  conclusion in Cartee applies with equal force here: "Considering the
  critical role  complainant's testimony and credibility occupied in the
  trial, exclusion of the .  .  .  evidence  regarding motive was prejudicial
  and cannot be considered harmless."  Id.  Accordingly, the  judgment must
  be reversed and the matter remanded for a new trial.  

       Our conclusion renders it unnecessary at this time to address
  defendant's alternative claim  that the court erred in denying the motion
  to dismiss.  In the event of a retrial and finding of  delinquency, the
  claim may be reasserted on appeal.  The State's motion to strike appellate 
  counsel's post-argument letter containing a supplemental citation is
  denied.


       Reversed and remanded. 
    

	                               BY THE COURT:


	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
	                               John A. Dooley, Associate Justice

	                               _______________________________________
	                               James L. Morse, Associate Justice

	                               _______________________________________
	                               Denise R. Johnson, Associate Justice

	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice