State v. BurgessState v. Burgess
- Reporters:
- , , ,
- Before:
- Burgess, Reiber, Dooley, Johnson, Skoglund
¶ 1. BURGESS, J. Defendant Timothy Burgess appeals pro se from his conviction of sexual assault and lewd and lascivious conduct against his minor stepdaughter, J.H. He argues that the trial court committed reversible error by: (1) admitting hearsay evidence; (2) admitting evidence of his prior sexual conduct; (3) allowing the prosecutor to ask questions that were contrary to pretrial rulings and based on facts not in evidence; (4) allowing the Franklin County State‘s Attorney to testify; and (5) denying his motion for judgment of acquittal and a new trial. We affirm.
¶ 2. Defendant was charged with sexual assault and lewd and lascivious conduct in January 2004. The information alleged that defendant placed his penis in J.H.‘s hand between December 1997 and December 1998, when J.H. was ten years old, and that defendant inserted his fingers into J.H.‘s vulva between February 2003 and December 2003, when J.H. was sixteen.
¶ 3. The following evidence was presented at trial. J.H. lived with her brother, her mother, Lisa Burgess, and defendant. In April 1998, Mrs. Burgess moved in with another man, leaving J.H. and her stepbrother with defendant. During the month that Mrs. Burgess was gone, J.H. woke up several times to find defendant‘s penis in her hand. She testified that defendant used her hand to masturbate. In September 2000, J.H. told several friends about defendant‘s behavior. Shortly thereafter, she was interviewed by police and officials from the Department for Children and Families (DCF). At that time, J.H. denied that anything improper occurred.
¶ 4. J.H. testified at trial that defendant began touching her again in the fall of 2003, around the same time that her mother again became involved with a different man. She stated that she woke up numerous times to find defendant‘s fingers in her vagina. In late December 2003, J.H. told her friend Amber Felisko that she was planning to run away. According to J.H., Amber understood that she was leaving because she could no longer take defendant‘s behavior. J.H. ran away with her boyfriend shortly thereafter, testifying that she left to get away from defendant. J.H. was discovered in Pennsylvania the following day, and her biological father, her father‘s girlfriend Missy Munro, and defendant, went to pick her up. J.H. testified that on the ride back to Vermont, she told Ms. Munro that defendant had been touching her inappropriately. After learning of J.H.‘s disclosures, J.H.‘s mother eventually told defendant to move out, and the police were contacted.
¶ 5. Mrs. Burgess also testified at trial. She stated that she confronted defendant about the abuse shortly after J.H.‘s return from Pennsylvania. She told defendant not to deny abusing J.H. because it was “the same stuff” that he had done to her while she was sleeping, and “it‘s familiar.” Mrs. Burgess testified that defendant told her that “it all started” when she left him for another man in April 1998, and that he told her “it was just my fingers.” According to Mrs. Burgess, defendant admitted to her that he might be attracted to J.H., that it was “definitely a girl thing,” and that he had not abused their son. Mrs. Burgess stated that, after ordering defendant to move out, she found a note from him that stated “Lisa, I‘m sorry, I love you, I‘m seeking help.” Defendant verbally reiterated to Mrs. Burgess that he needed to get some help, and told her that he hoped she would stand by him.
¶ 6. At trial, defendant denied abusing J.H., and testified that after retrieving
¶ 7. Defendant first argues that the court committed reversible error by allowing numerous witnesses to testify to J.H.‘s hearsay statements.1 He maintains that evidence of the victim‘s prior consistent statements should have been excluded because, as of October 2002, J.H. had a motive to lie to explain her trip to Pennsylvania with her boyfriend. Defendant asserts that because this case presented a credibility contest, the improperly admitted evidence cannot be considered harmless beyond a reasonable doubt.
¶ 8. Defendant failed to object to any of this evidence at trial, and we find no plain error. See State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 26 (1993) (“Plain error exists only in exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant‘s constitutional rights.” (citation omitted)). We begin with defendant‘s challenge to Ms. Munro‘s testimony. The record shows that the State questioned Ms. Munro about her trip to Pennsylvania, cautioning her to respond “yes” or “no” to its questions. The prosecutor asked Ms. Munro if at some point J.H. said that “there had been inappropriate conduct.” Defendant objected, and the parties discussed the issue at the bench. The State indicated its belief that the court had ruled that it could lead Ms. Munro with that specific question to avoid the introduction of any hearsay evidence. The State explained that based on its earlier offer, the next question would be “did you call the authorities,” and “why not?” The court noted that the parties agreed in their opening statements that J.H. told Ms. Munro about the abuse and that Ms. Munro had not contacted police. Defense counsel stated, “that‘s fine,” and the court allowed the State to ask its leading question. Ms. Munro then testified that J.H. told her that defendant had engaged in some inappropriate sexual conduct, and that she had not contacted the police because they were in Pennsylvania and she did not think that there was anything Pennsylvania police could do.
¶ 9. The court did not commit plain error in allowing this testimony. Ms.
¶ 10. We next consider the testimony offered by Amber Felisko. Amber testified that J.H. told her that she was running away on the morning that she left Vermont. The prosecutor asked Amber if at some point before that morning, J.H. told her that defendant had engaged in inappropriate sexual contact, directing Amber to answer “yes” or “no.” Amber responded affirmatively, but went on to say that J.H. never “completely said anything” to her about the abuse but rather said something along the lines of “things happening.” Amber later told her mother what J.H. told her.2
¶ 11. Defendant did not object to any of this testimony, and in fact elicited additional hearsay statements from Amber. Assuming that J.H.‘s hearsay statement about “things happening” was made after J.H. had a motive to lie and therefore, was not a prior consistent statement allowable under
¶ 13. We fail to see how defendant was unduly prejudiced by the admission of any of this evidence. Mrs. Burgess did not testify to anything specific that J.H. said after returning from Pennsylvania. Her statement about the phone call from DCF was, if anything, to defendant‘s benefit. Moreover, there was no dispute about what DCF did or the conclusion that it reached in September 2000; numerous witnesses testified about these events. Finally, Mrs. Burgess‘s description of the phone call that she received from Ms. Felisko was not only elicited by defense counsel, but it was cumulative to trial testimony offered by Ms. Felisko, Amber, and J.H., all of whom were subject to cross-examination. We find no plain error.3
¶ 14. We turn next to defendant‘s argument that the court erred in allowing Mrs. Burgess to testify to his hearsay statements. As noted above, Mrs. Burgess testified that defendant told her “it all started” when she left him for another man; that “maybe somewhere deep down” he was attracted to J.H.; that he had not had sex with J.H. but just used his fingers; that it was “definitely a girl thing,” and he had not abused his son; and that defendant told her he was sorry and that he was getting help. These statements were plainly admissible as nonhearsay under
¶ 15. Defendant‘s reliance on State v. Verrinder, 161 Vt. 250, 637 A.2d 1382 (1993), is misplaced. In that case, the defendant sought to introduce his own statement of remorse, which he made to a witness shortly after killing someone. Id. at 256, 637 A.2d at 1387. Defense counsel argued that the statement was admissible, not as nonhearsay, but as a present sense impression, an excited utterance, or a statement of then-existing mental condition, all exceptions to the hearsay rule. Id. The trial court rejected this argument and excluded the testimony. Id. We affirmed. We did not hold, as defendant argues, that a defendant‘s hearsay statements are always inadmissible at trial unless they fall within the three hearsay exceptions discussed in Verrinder.
¶ 16. Defendant next argues that the court committed reversible error by admitting evidence of his past sexual acts with Mrs. Burgess. He points to his wife‘s statement that J.H.‘s description of the abuse was “familiar” to her, and that defendant had done the same things to her while she was sleeping. Defendant asserts that this error was compounded by the prosecutor raising it during her closing argument.
¶ 17. Again, defendant did not object to this testimony below, nor did he did argue that the evidence should be excluded under
¶ 18. Given the discussion above, we reject defendant‘s assertion that the prosecutor erred by repeatedly asking questions that suggested facts not properly in evidence, as well as his claim that he was denied due process as a result of a pattern
¶ 19. Defendant next argues that the trial court committed reversible error in allowing the Franklin County State‘s Attorney to testify at trial. The record indicates the following. During his direct examination, defendant testified to his recollection of the DCF investigation in September 2000. He stated that he received a letter from DCF, which indicated that it was not going to take any action on the allegation of sexual abuse. Defendant testified that he was surprised to receive the letter. He then stated, “knowing the [Franklin County] State‘s Attorney fairly well I called him and simply asked him what this was all about.” He testified that based on his conversation with the State‘s Attorney, he learned that “the complaining person had made these allegations before and not to worry about it.”
¶ 20. The State then called the State‘s Attorney, James Hughes, as a rebuttal witness. Mr. Hughes explained that he and defendant had been neighbors, and that J.H. and his daughter had been friends. He testified that he did not recall ever discussing an allegation of sexual abuse or a letter from DCF with defendant. He stated that he never told defendant that Holly Creeks, the woman who contacted DCF, had made allegations of inappropriate sexual conduct about others. The prosecutor then asked Mr. Hughes if he had “any concerns” about J.H. around this time. Mr. Hughes responded affirmatively, and defendant objected, arguing that Mr. Hughes was going beyond the scope of rebuttal. The court sustained the objection, and the prosecutor discontinued this line of questioning. Defendant did not ask that Mr. Hughes’ answer be stricken, or that the court give the jury a cautionary instruction.
¶ 21. Defendant now argues that his conviction should be reversed because Mr. Hughes “placed his personal imprimatur on the veracity of the State‘s case,” and his testimony went beyond mere rebuttal on the collateral issue raised by defendant on direct examination. We reject this argument. First, Mr. Hughes had no direct involvement in prosecuting the case against defendant, and the cases cited by defendant are largely inapposite. Cf. State v. Griffith, 481 P.2d 34, 41 (Idaho 1971) (finding no reversible error where deputy prosecuting attorney called prosecuting attorney to testify to statements made by witness during investigative interview, but cautioning that the prosecuting attorney should not be called to testify against defendant unless such testimony is “absolutely essential“); State v. Alfano, 701 A.2d 1296, 1300 (N.J. Super. Ct. App. Div. 1997) (recognizing that trial court has discretion in determining whether a defendant can call the prosecuting attorney as a witness). Indeed, the record suggests that defendant was trying to use Mr. Hughes’ position to bolster his testimony that the victim‘s allegation in 2000 was unfounded. The State was entitled to call Mr. Hughes to rebut this testimony, and Mr. Hughes’ ambiguous statement that he had “concerns” about J.H. does not rise to the level of plain error.
¶ 22. Finally, we reject defendant‘s assertion that the trial court erred in denying his motion for a new trial and judgment of acquittal without holding a hearing on the motion or issuing written findings. Defendant maintains that, absent written findings, this Court cannot discern if the trial court abused or withheld its discretion. We disagree. The record shows that in his consolidated motion for new trial and judgment of acquittal, defendant raised all of the same arguments that he now raises on appeal, with the exception of his assertion that the jury‘s verdict was
Affirmed.
FOR THE COURT:
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Associate Justice