48 A.3d 595
Vt.2012Background
- State filed a delinquency petition alleging A.C. engaged in lewdness and lascivious conduct under 13 V.S.A. § 2601 based on a March 18, 2010 hallway incident at school.
- Complainant A.R. testified that A.C. and T.W. touched her inappropriately, with A.C. touching her buttocks through her underwear and T.W. touching her breasts and vaginal area; A.R. ran crying.
- Trial court consolidated the A.C. and T.W. prosecutions for part of the merits hearing, then bifurcated and heard additional testimony separately, issuing findings in October 2010 that adjudicated A.C. delinquent.
- During trial, A.C. moved to disregard testimony following late disclosure of a recorded interview with T.W.; the court agreed to reconsider its findings in light of that proffered testimony.
- At disposition, the court sua sponte reduced the charge to the misdemeanor offense of prohibited acts (13 V.S.A. § 2632) from lewd and lascivious conduct, and both sides acquiesced to this substitution.
- A.C. appeals on multiple evidentiary issues including prior bad acts, Rule 26 notice, Confrontation Clause implications, and the sufficiency of the evidence to support the prohibited acts finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Confrontation Clause and hearsay testimony | Gratton and Hill testimony about prior statements were improperly admitted against A.C. | Admission violated Confrontation Clause because A.R. was unavailable for cross-examination. | No plain error; record did not show unavailability of A.R. for cross-exam. |
| Right to present complete defense via prior consensual conduct | Evidence of other students' conduct was admissible to show context and does not negate state's case against A.C. | Court precluded targeted questioning about A.R.'s prior consensual conduct with A.C. and others. | Court did not err; defendant did not specifically pursue cross-examination to define prior conduct. |
| Violation of Rule 26 notice for other crimes | Questions to A.R. could elicit prior uncharged conduct by A.C.; notice not required in this context. | Rule 26 notice was violated to elicit prior uncharged acts by A.C. | No Rule 26 violation; no implied prior uncharged conduct was established. |
| Plain error review for Gratton and Hill testimony | Admission of testimony was within plain error standard due to trial rulings. | Admission of testimony violated evidentiary rules and fundamental fairness. | No plain error; the rulings did not threaten fair proceedings. |
| Sufficiency of evidence for prohibited acts finding | A.R.’s in-person account corroborated by witness Hill supports open and gross lewdness. | Evidence may not meet the statutory definition for prohibited acts. | Evidence supports a finding of prohibited acts; conviction affirmed. |
Key Cases Cited
- State v. Memoli, 2011 VT 15 (Vt. 2011) (defining open and gross lewdness and context-specific lewd conduct)
- State v. Squiers, 179 Vt. 388 (Vt. 2006) (analysis of lewdness and community standards for sexual conduct)
- State v. Tribble, 179 Vt. 235 (Vt. 2005) (review of evidence sufficiency and credibility standards)