State of Vermont v. Shawn Bellanger
No. 2016-221
Supreme Court of Vermont
2018 VT 13
June Term, 2017
David A. Howard, J.
NOTICE: This opinion is subject to motions for reargument under
On Appeal from Superior Court, Bennington Unit, Criminal Division
David Tartter, Deputy State‘s Attorney, Montpelier, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 2. Defendant and victim D.H.‘s mother lived together for approximately eighteen months. Approximately one month after the two separated and ceased contact, D.H. disclosed to her mother that defendant had forced her to perform oral sex on
¶ 3. The State subsequently charged defendant with five offenses: (1) aggravated sexual assault on a victim under age thirteen in violation of
¶ 4. During defendant‘s trial, the jury heard testimony from D.H.‘s mother describing D.H.‘s initial disclosure and from D.H. regarding the incidents alleged. D.H. testified that defendant had sexual contact with her “[m]ore than one time.” She testified that defendant “put his private in [her] mouth” in “certain places,” namely in the bathroom, in D.H.‘s mother‘s room, and in D.H.‘s mother‘s closet. She also described incidents wherein defendant had tongue-to-vulva contact with her, and both finger-to-vulva contact and penis-to-vulva contact with her. D.H. disclosed this last incident for the first time at trial—she had not previously disclosed this incident to her mother or to law enforcement investigators.
¶ 5. The jury convicted defendant of both aggravated sexual assault of a child under
¶ 6. Defendant outlines four separate arguments—two related to the court‘s jury instructions, a third related to the sufficiency of the State‘s evidence on one element of the aggravated sexual assault charge, and a fourth related to the prosecutor‘s closing argument. Defendant‘s first and final arguments can be addressed as distinct claims of error, but defendant‘s second and third arguments must be addressed together.
I. The Unanimity Instruction
¶ 7. We begin with defendant‘s first argument related to the jury instructions: that the trial court‘s unanimity instruction did not instruct the jury that to convict defendant for aggravated sexual assault of a child under
¶ 8. We review jury instructions not in isolation but as a whole. State v. Levitt, 2016 VT 60, ¶ 13, 202 Vt. 193, 148 A.3d 204; State v. Herrick, 2011 VT 94, ¶ 18, 190 Vt. 292, 30 A.3d 1285. In this case, the trial court instructed jurors as follows:
For a guilty verdict on this count, you must all agree to more than one of the described sexual acts happening. You can all agree to more than two, but you must all agree to at least more than one. You may find more than one act of different types occurred or more than one of the same type of act occurred.
The court defined a sexual act as conduct “consisting of contact between the penis and vulva, the penis and anus, the mouth and penis, the mouth and vulva, or any intrusion, however slight, by any part of a person‘s body or any object, into the genital or anal opening of another.” Defendant argues that this instruction required jurors to unanimously agree that at least two sexual acts occurred, but did not require jurors to unanimously agree on which specific acts formed a factual basis for conviction under
¶ 9. The Vermont Constitution requires that a criminal conviction will follow from only a unanimous verdict.
¶
¶ 11. This is not a case in which “generic” evidence was presented of a multitude of more or less indistinguishable acts of sexual abuse over a period of time. See People v. Jones, 792 P.2d 643, 650 (Cal. 1990) (en banc) (noting that election or instruction “can help focus the jury on the same specific act where evidence of several distinct acts has been elicited,” but “neither an election nor a unanimity instruction is very helpful where the victim is unable to distinguish between a series of acts, any one of which could constitute the charged offense.“).3 The State argues that the evidence
¶ 12. Defendant argues that an objection to the jury instructions was properly preserved and that our review should proceed under the harmless error standard. The State disputes this argument, advocating instead for plain error review because any objection was not specific to the unanimity question presented on appeal. The appropriate standard in this case is plain error. In order to preserve an objection to a jury instruction, a defendant must not only object to the instruction with specificity in the charge conference but also must renew that objection “before the jury retires to consider its verdict, stating distinctly the matter to which objection is made and the ground of the objection.”
¶ 13. In the charge conference in this case, defendant, the State, and the court discussed revising the jury instructions to ensure that jurors understood that they must agree that at least two acts occurred in order to convict for aggravated sexual assault under
¶ 14. Even if defendant‘s objection to the jury instruction during the charge conference could be considered an objection on the ground that a specific unanimity instruction was needed, the trial court‘s final instruction clearly did not reflect the court‘s understanding of that objection. Given that the purpose of preservation‘s requirement for specific post-charge objections is to give the trial court its due “one last opportunity to avoid an error,” we cannot say that defendant‘s blanket renewal was sufficient under these circumstances to allow the court a chance to correct remaining defects in the instructions. Hinchliffe, 2009 VT 111, ¶ 33 (quotation omitted).4 Put simply, the omission of a specific unanimity instruction indicates that the trial court did not understand defendant‘s argument in the charge conference to be predicated on the need for such an instruction. For this reason, defendant needed to clearly notify the trial court that a specific unanimity instruction was required so that the trial court could then take any necessary reparative action. Because defendant did not give the trial court a final opportunity to correct its mistake, defendant‘s objection is unpreserved and our review is for plain error.
¶ 15. A plain error review of jury instructions requires us to “examine the instructions in light of the record evidence as a whole” and decide whether the error defendant raises “would result in a miscarriage of justice.” Herrick, 2011 VT 94, ¶ 18. This inquiry involves four questions: whether there is error, whether that error is obvious, whether that error affects a defendant‘s substantial rights and has led to prejudice, and whether that error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. In other words, to find plain error, “there must be a reasonable probability that the error affected the outcome of the trial.” United States v. Marcus, 560 U.S. 258, 262 (2010) (emphasis added). An error is reasonably likely to have affected the outcome of a trial when it is reasonably likely that some jurors could have found that some of the alleged acts occurred and other jurors could have found that other of the alleged acts occurred. See, e.g., In re Carter, 2004 VT 21, ¶ 24, 176 Vt. 322, 848 A.2d 281 (“To demonstrate prejudice, petitioner would need to show that it was likely that some jurors found that there were threats to the victim but not to her family while other jurors found just the opposite.“). Defendant bears the burden of demonstrating that there was more than just a “logical possibility” that the jury differed on the factual basis underlying defendant‘s aggravated sexual assault of a child conviction—the likelihood of a nonunanimous verdict must be “reasonable.” See Nicholas, 2016 VT 92, ¶ 26 (quotation omitted).
¶ 16. As we have explained before, this is “a very high bar.” Herrick, 2011 VT 94, ¶ 18. Defendant has not reached that bar in this case. Put simply, while there is a possibility that jurors differed on the factual basis for defendant‘s conviction, it is neither logically nor reasonably likely that the jurors would have reached a different verdict had the trial court given a specific unanimity instruction.
¶ 17. In short, defendant has not demonstrated that the lack of a specific unanimity instruction gave rise to any prejudice. Our reasoning on this point rests on the defense presented below. During the charge conference, defense counsel conceded that the defense was “all or nothing.” He went on to state that jurors were either “going to believe the child or they‘re not. If they believe the child, I can‘t see them not believing all the acts.” While the State presented testimony from D.H.‘s mother and the investigating officer, the State‘s case centered on D.H.‘s testimony concerning the offenses defendant allegedly committed. The State presented no extrinsic evidence to accompany this testimony. Therefore, the jury‘s verdict could have rested only on its determination as to D.H.‘s credibility—and, given the jury‘s verdicts convicting defendant, the jurors likely found D.H. credible.
¶ 18. Courts in several states have held that where a defendant presents a blanket defense, which relies on undermining witness credibility and arguing that none of the alleged acts occurred, a different verdict is “even if a logical possibility, not a reasonable possibility.” Nicholas, 2016 VT 92, ¶ 26 (quotation omitted) (collecting cases). Where the defense raises only a single issue—witness credibility—and the jury convicts despite this defense, then it is reasonable to conclude that jurors believed all of the witness‘s testimony and their verdict would not have been different even if a specific unanimity instruction was given.
II. The Nonconsent Instruction and the Sufficiency of the State‘s Evidence
¶ 19. We turn now to defendant‘s next arguments: (1) that the trial court erred by instructing jurors they could presume nonconsent on the basis of D.H.‘s age at the time of the alleged offenses; and (2) that the State failed to present sufficient evidence on a necessary element of
¶ 20. First,
Section
(a) No person shall engage in a sexual act with another person and compel the other person to participate in a sexual act:
(1) without the consent of the other person . . . .
. . .
(c) No person shall engage in a sexual act with a child who is under the age of 16, except . . .
(1) where the persons are married to each other and the sexual act is consensual; or
(2) where the person is less than 19 years old, the child is at least 15 years old, and the sexual act is consensual.
[Defendant], being at least 18 years of age engaged in a sexual act with a child under the age of 16[,] engaged in a sexual act with another person and compelled the other person to participate in a sexual act without the consent of the other person[,] and the victim was subjected by [defendant] to repeated nonconsensual sexual acts as part of the same occurrence or the victim was subjected to repeated nonconsensual sexual acts as part of the actor‘s common scheme and plan . . . .
¶ 21. During defendant‘s trial, the court instructed jurors that to convict under
Nonconsensual means that D.H. did not voluntarily agree to engage in a sexual act. However, if you find she was under the age of sixteen years, you do not need to determine if she consented to the conduct in question, because under Vermont law, a person under the age of sixteen years cannot consent to a sexual act. So if you find a sexual act, or acts, occurred with a person under the age of sixteen years, it was nonconsensual as a matter of law. If you find D.H. was under the age of sixteen years, for the consent element it does not matter if the child was a willing participant or not. By law, a child under the age of sixteen years is not legally capable of consenting to a sexual act.
It is undisputed that D.H. was eleven at the time of trial, and that she was between the ages of nine and ten when the alleged acts occurred.
¶ 22. Defendant argues that inclusion of this mandatory nonconsent inference was error for two main reasons. First, it eliminates from the jury‘s consideration a required element of
¶ 23. The court also instructed jurors they must find that D.H. and defendant were not married at the time of the alleged events. The State objected to this instruction, arguing that because the
¶ 24. We begin with defendant‘s argument that the nonconsent instruction eliminated an essential element for conviction under
¶ 25. As we explained in Deyo, our caselaw has “recognized a minor‘s inability to consent to sexual relations with an adult.” Id. ¶ 15; see State v. Hazelton, 2006 VT 121, ¶ 27, 181 Vt. 118, 915 A.2d 224 (“At the time of this offense, it was long settled under Vermont law that it was legally impossible for an unmarried child under the age of sixteen to consent to sexual acts.“); State v. Thompson, 150 Vt. 640, 644, 556 A.2d 95, 98 (1989) (“[C]onsent by a minor is not legally possible.“); State v. Clark, 77 Vt. 10, 12, 58 A. 796, 796 (1904) (“Since the person assaulted was under the age of sixteen years, the question of her consent was immaterial.“); State v. Sullivan, 68 Vt. 540, 543, 35 A. 479, 479 (1896) (“If the female is under the age of fourteen years, the element of consent is eliminated.“). This understanding is derived from the basic principles that “statutes in derogation of the common law are to be construed narrowly” and “where statutes covering a subject are more narrow than the common law, the common law remains in force as to cases outside the scope of the statute.” Deyo, 2006 VT 120, ¶ 16. Here, Vermont‘s statutory rape statute, now codified at
¶ 26. At the time of statehood, the English common law presumed that a child under the age of ten was not legally capable of giving consent.7 See Hazelton, 2006 VT 121, ¶ 28 (citing Coates v. State, 7 S.W. 304, 306 (Ark. 1888), and discussing English statute 18 Eliz., c. 7); see also State v. Tilman, 30 La. Ann. 1249, 1250 (1878) (discussing sources of common law on consent and explaining 4, William Blackstone, Commentaries *212 states law has generally held children under ten cannot legally give consent). As we explained in Hazelton, over time this presumption has been broadened by statute—first to include children under eleven, then children under fourteen, and finally children under sixteen. 2006 VT 121, ¶ 28 (citing 1791 Haswell, p. 294; 1886, No. 63, § 1; 1898, No. 118, § 1). The Legislature later limited this law by adding two statutory exceptions: one under
¶ 27. But the broad presumption remains—a person under the age of sixteen is legally unable to consent unless the person is either married or both parties fall within the age limits of
Here, the statutes covering the subject of consent by minors to sexual activity with adults, while they do describe certain instances in which minors can give consent, do not do away with the common law that does not generally recognize consent by minors to sexual activity. Rather, by specifically enumerating those limited circumstances in which a minor can consent, the Legislature has only reinforced its adherence to the common law. Thus, the most reasonable construction of the statutes is that a minor is legally incapable of consenting to sexual intercourse with an adult except in the very narrow circumstances in which the Legislature has explicitly stated that a minor‘s consent will be effective.
2006 VT 120, ¶ 16. Deyo‘s reasoning applies equally to
¶ 28. Thus, on the facts of this case, the trial court‘s nonconsent instruction was not error. It is undisputed that D.H. was between nine and ten at the time of the alleged offenses—even under the Elizabethan understanding of consent and that era‘s expectations regarding childhood, D.H. would have been presumed to be legally incapable of giving consent. And under the law of this State, coming as it does from an act adopted in 1898, D.H. is also presumed to be unable to consent.
¶ 29. Our resolution of this issue necessarily means that the trial court also
¶ 30. We considered and addressed this issue in Hazelton. In that case, the defendant was charged with two separate counts on the basis of the same act: the first count charged the defendant with engaging in a sexual act with a person under sixteen to whom he was not married, and the second count charged the defendant with compelling a person to engage in a sexual act without the person‘s consent. Hazelton, 2006 VT 121, ¶ 23. We held that the defendant could not be convicted of both of these counts on the basis of the same underlying conduct because, essentially, as applied to a victim under the age of sixteen, the counts were identical. As we explained:
The one statutory difference between the two offenses in effect at the time, that the victim must be unmarried to the offender for there to be a violation of [the first count], is so insubstantial as to be indistinct. When the victim is under sixteen, the gravamen of both charges is that the victim is incapable of consent unless married to the defendant. . . . While the absence of marriage must be affirmatively pled for a charge of statutory rape . . . , the fact of marriage is equally relevant to a charge of compelled sexual assault . . . when the victim is under sixteen, since legislative recognition of a minor‘s marriage introduces the defense of consent to both charges. Once the issue of a minor‘s marriage to the accused is raised, under both [the statutory rape and compelled sexual assault statutes], the State has the burden of proving actual lack of consent in either case. In real terms of actual liability, the required allegation of nonmarriage in one offense, but not the other, is meaningless.
Id. ¶ 37. Requiring the State to prove that the parties are unmarried does not come from the language of the charge against a defendant, rather, it arises whenever a defendant is charged with committing nonconsensual sexual acts on a person under sixteen and the court gives an instruction authorizing the jury to presume nonconsent because the child is under sixteen.
¶ 31. In this case, the jury was correctly instructed that it could find nonconsent as a matter of law because D.H. was under sixteen. And the jury was also correctly instructed that, in order to do so, it must find that defendant and D.H. were not married—the need for this instruction did not come from the subsection of
¶ 32. There was ample evidence in this case from which the jury could find that defendant and D.H. were not married. D.H. testified that she lived with her mother, sister, and brother, and that defendant lived with them for some time and took care of all three children while D.H.‘s mother was working. D.H.‘s mother testified that she and defendant dated and subsequently lived together, along with her three children. D.H.‘s mother also testified
¶ 33. We similarly see no merit in defendant‘s argument that the nonconsent instruction results in any Eighth Amendment violation.
¶ 34. The Georgia case cited by defendant involves facts wildly different from those in this case; there, the seventeen-year-old defendant was convicted of aggravated child molestation after engaging in a consensual sex act with a fifteen-year-old partner. Humphrey v. Wilson, 652 S.E.2d 501, 502-03 (Ga. 2007). The defendant was sentenced to eleven years imprisonment, with ten to serve and one on probation, and was required to register as a sex offender. After the defendant was sentenced, but while he had an appeal pending, the Georgia Legislature amended the statute under which the defendant was convicted, downgrading the offense at issue from a felony to a misdemeanor. Id. at 503-04. The defendant filed a habeas petition arguing that under the new statutory scheme, his sentence constituted “cruel and unusual punishment” in violation of the Eighth Amendment and, as such, could not stand.
¶ 35. The court agreed, explaining that “whether a particular punishment is cruel and unusual is not a static concept, but instead changes in recognition of the evolving standards of decency that mark the progress of a maturing society,” and that “[l]egislative enactments are the clearest and best evidence of a society‘s evolving standard of decency and of how contemporary society views a particular punishment.” Id. at 505 (quotations omitted). The court cited Justice Kennedy‘s concurrence in Harmelin v. Michigan, 501 U.S. 957, 996-1009 (1991) (Kennedy, J., concurring), and Justice O‘Connor‘s plurality opinion in Ewing v. California, 538 U.S. 11, 29-30 (2003) (O‘Connor, J., plurality opinion), both of which defendant also cites, for the principle that when considering whether a punishment is cruel and unusual, “courts must bear in mind the primacy of the legislature in setting punishment and seek to determine whether the sentence furthers a ‘legitimate penological goal’ considering the offense and the offender in question.” Humphrey, 652 S.E.2d at 505-06 (quoting Ewing, 538 U.S. at 29 (O‘Connor, J., plurality opinion)). “If a sentence does not further a legitimate penological goal, it does not ‘reflect [] a rational legislative judgment,
¶ 36. Humphrey is consistent with Justice Kennedy‘s Harmelin concurrence and Justice O‘Connor‘s plurality opinion in Ewing.8 In the Harmelin concurrence, Justice Kennedy explained that the Eighth Amendment proportionality principle involves several principles—including deference to legislative assessment of proper punitive measures for particular crimes, the equal legitimacy of different penological theories, the federal structure‘s open embrace of different punitive schemes in different states, and the idea that federal court review should be grounded on “objective factors to the maximum extent possible.” Harmelin, 501 U.S. at 998-1001 (Kennedy, J., concurring) (quotation omitted). Regarding the first of these factors, Justice Kennedy wrote “[t]he efficacy of any sentencing system cannot be assessed absent agreement on the purposes and objectives of the penal system. And the responsibility for making these fundamental choices and implementing them lies with the legislature.” Id. at 998.
¶ 37. The Harmelin concurrence‘s distillation of caselaw guided Justice O‘Connor‘s Ewing plurality. Ewing, 538 U.S. at 23-24. The Ewing decision begins with the principle the Georgia court expressly relied on in Humphrey—that courts engaged in a proportionality analysis should defer to a legislature‘s “deliberate policy choice” in imposing penalties. See Ewing, 538 U.S. at 24-28. When a sentencing scheme is controversial, “[t]his criticism is appropriately directed at the legislature, which has primary responsibility for making the difficult policy choices that underlie any criminal sentencing scheme. We do not sit as a ‘superlegislature’ to second-guess these policy choices.” Id. at 28-29. In essence, the decision concludes that when a sentence has been imposed through legislative action, it is presumed to pass proportionality consideration as long as it serves a “legitimate penological goal.” Id. at 29.
¶ 38. None of these three cases dictates the ruling defendant seeks in this case—they dictate exactly the opposite result. Section
¶ 39. In 2009, the Legislature revisited the topic of sexual violence prevention with an Act adopted in response to a Senate Judiciary Committee report and plan concerning Vermont‘s response to child sexual abuse. See 2009, No. 1, § 1. This Act amended Title 13 to add
¶ 40. Defendant argues that the penalty associated with
III. The State‘s Closing Argument
¶ 41. This brings us to defendant‘s final argument—that the prosecutor‘s closing argument improperly invited jurors to go beyond the evidence presented at trial, giving rise to the need for a new trial. We conclude that none of the statements defendant construes as improper rise to the level of reversible error.9
¶ 43. The most fundamental distinction is that in Scales the prosecutor expressly invited jurors to imagine themselves in the place of the victim:
As adults, no one would want to ever come into court . . . and say, okay, I‘m going to talk now about my first sexual experience. . . . Imagine how difficult it would be for an adult, and then put yourself in the eyes of a twelve-year-old child, and how difficult and challenging it would have been for her, and for her to come here, as well.
2017 VT 6, ¶ 26 (emphasis added). We explained that “[t]he longstanding rule in Vermont is that counsel should confine argument to the evidence of the case and inferences properly drawn from it,” an obligation that is “particularly essential for prosecutors.” Id. ¶ 29 (quotation omitted). We found that the prosecutor‘s statement was “inflammatory,” “appeal[ed] to the sympathies of the jury,” and, by implication, invited jurors to draw inferences based on their own personal experience rather than the evidence presented. Id. ¶ 30. But see Duchaine v. Ray, 110 Vt. 313, 321-23, 6 A.2d 28, 32 (1939) (holding prosecutor‘s request to jury to “put [themselves] in the place of this plaintiff, and assess damages on that theory” was “highly improper” but not prejudicial because, when considered against field of all evidence, jury‘s damages award was not “excessive“).
¶ 44. Unlike the statement at issue in Scales, the statements that defendant challenges as a golden rule violation do not overtly invite jurors to place themselves in the victim‘s position. And when considered within the context of the prosecutor‘s surrounding argument, the contested argument is identical in sentiment to a statement that we found was not a golden rule violation, and not improper, in State v. Bubar, 146 Vt. 398, 505 A.2d 1197 (1985). In that case, the prosecutor asked jurors whether they had “given any thought to how difficult it was for [the victim] to sit up here and do what she did’ by testifying.” Id. at 403, 505 A.2d at 1200. We held
So her story—the way the story came out, and the fact that she told what she told in the interview makes perfect sense. And the fact that it was different here also makes sense. And think about—most people can remember being in fifth grade, or fourth grade, having to do your very first oral report, how incredibly stressful that is. Most people remember it. And here we have a fifth-grade girl who has to give an oral report to this group of strangers on a topic incredibly private.
How difficult it was for her to talk about what was in the bedroom. That was real emotion. She‘s not an actress; she‘s a little girl. And her demeanor on the stand, above all else, demonstrated the truthfulness of her report.
. . .
She described him putting fingers—and this is another example of her truthfulness.
She was asked in the interview, did the fingers go inside or outside? She had to really think about that. And as adults, we can all look about that and think, that‘s a really hard question, inside or outside. And she‘s like, well, not all the way up inside but kind of inside, and uses kind words like I‘m not sure, and it‘s like kind of inside, not really inside. That‘s exactly how you would describe it if you were trying to figure it out and you‘re eleven years old.
The entirety of the prosecutor‘s statement here is more or less an invitation to jurors to think about how difficult it was for D.H. to testify. And like the statement in Bubar, the prosecutor‘s complete statement in this case addresses the victim‘s credibility—a permissible subject for argument. See State v. Gates, 141 Vt. 562, 567, 451 A.2d 1084, 1086 (1982) (“The credibility of the defendant‘s alibi witness was certainly fair game for the prosecution.“). This is not an invitation to jurors to place themselves in the victim‘s position, but an argument to jurors explaining that they should find D.H. credible. Thus, these statements do not violate the golden rule.
¶ 45. This is not to say that all credibility arguments are proper. We have, for example, found plain error in a prosecutor‘s closing where the prosecutor overtly framed statements about witness credibility in terms of his own opinion, those statements “went directly to the heart of the defense,” the case turned on credibility, and the prosecutor‘s conduct demonstrated a “studied purpose to introduce the improper considerations.” State v. Ayers, 148 Vt. 421, 425-27, 535 A.2d 330, 333-34 (1987) (quotation omitted); see also State v. Hemond, 2005 VT 12, ¶ 15, 178 Vt. 470, 868 A.2d 734 (mem.) (holding prosecutor‘s closing not plain error where prosecutor‘s statements of opinion “appeared sporadically” and “expressed what the prosecutor thought the jury would believe, and did not urge upon the jury the prosecutor‘s own view as to the guilt of the defendant“); State v. Messier, 146 Vt. 145, 160, 499 A.2d 32, 43 (1985) (holding prosecutor‘s closing not plain error where prosecutor made six statements framed as his opinion, which “if technically improper,” did not give rise to prejudice when considered against weight of evidence, and court‘s instruction that argument was not evidence and jury was sole judge of credibility).
¶ 46. This brings us to defendant‘s second argument related to the prosecutor‘s
¶ 47. Regarding the second of these arguments, each of the statements that defendant characterizes as an improper comment on the victim‘s precocious sexual knowledge is grounded in the evidence presented. D.H.‘s testimony included detailed descriptions of the sound defendant made when he allegedly had penis-to-mouth contact with her, she described “the white stuff that comes out of a man‘s private,” and she explained that defendant wiped himself off with a towel after ejaculation. D.H.‘s mother testified that defendant habitually used a towel to wipe himself off after sex and that D.H. had never seen her having sex with defendant. In closing, the prosecutor recounted this testimony and stated with regard to each piece of evidence that, in essence, a ten-year-old girl would not know these details unless the incidents she alleged had actually happened. The prosecutor‘s statements did not go beyond the evidence presented and did not overtly express the prosecutor‘s own opinion. Rather, each statement that D.H.‘s detailed knowledge of sexual acts supported the truthfulness of her testimony was effectively a statement that the detail and consistency of D.H.‘s account supported the jurors finding her credible. As in Hemond, the prosecutor‘s statements “expressed what the prosecutor thought the jury would believe, and did not urge upon the jury the prosecutor‘s own view as to the guilt of the defendant.” 2005 VT 12, ¶ 15.
¶ 48. Furthermore, defendant did not object to these statements and our review is for plain error. We will find plain error in a prosecutor‘s closing argument only where an error “impairs a defendant‘s right to a fair trial and strikes at the heart of defendant‘s constitutional rights or results in a miscarriage of justice.” State v. Webster, 2017 VT 98, ¶ 25, ___ Vt. ___, ___ A.3d ___ (quotation omitted). Even if the statements defendant challenges could be construed to express the prosecutor‘s own opinion, the error is not so grave as to lead to any “miscarriage of justice.” Id. Defendant points to only a handful of instances wherein the prosecutor stated that a child could not know the details in D.H.‘s testimony unless the alleged acts occurred, at no point did the prosecutor overtly opine that she believed D.H., and each of the prosecutor‘s comments was tied to the evidence presented. Compare Hemond, 2005 VT 12, ¶¶ 15-16 (finding no plain error where prosecutor‘s statements overtly framed as personal opinion “appeared sporadically at roughly six locations,” expressed what prosecutor thought jurors would believe, “did not urge upon the jury the prosecutor‘s own view as to the guilt of the defendant,” and were linked to evidence), with Ayers, 148 Vt. at 424-27 (finding plain error where prosecutor repeatedly stated personal belief that witness testimony was true, comment was repeated several times in short closing argument, and “it appear[ed] from the transcript that the prosecutor‘s motive was to retaliate against . . . the defendant“). We conclude there is no plain error.
¶ 49. Defendant also argues that the prosecutor improperly injected her personal belief and opinion into closing argument when she told jurors that D.H. had no motive to lie. Defendant did object to this comment. Our review of this argument
the blatancy of the challenged statement, the impact on the theory of the defense, the persistence and frequency of the statement, the opportunity for the court to minimize potential prejudice, the strength of the evidence supporting the relevance of the statement, the overall strength of the State‘s case, the apparent motivation for making the remarks, and whether the statement was inflammatory and attacked defendant‘s character.
Hemond, 2005 VT 12, ¶ 12 (citations omitted). “Harmless error analysis requires the reviewing court to inquire if, absent the alleged error, it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict regardless of the error.” Webster, 2017 VT 98, ¶ 24. The State bears the burden of showing that an error was harmless. Id. We conclude that this part of the prosecutor‘s closing may have been improper, but that any error is harmless.
¶ 50. First, the prosecutor‘s comments on any motive to fabricate allegations against defendant went beyond the evidence presented during the trial. The prosecutor stated: “Everyone knows that when children lie, the story gets bigger, and bigger, and bigger until it‘s obvious that the child is lying.” She went on to describe hypothetical circumstances, such as a pending custody case or being in trouble at school, that she suggested might lead a child to fabricate allegations of abuse, and explained to the jury that none of those circumstances was relevant to D.H.‘s disclosure. Defendant objected on the ground that the prosecutor‘s statement was not related to the evidence, and we agree with defendant on this point. We have previously held that “[w]hile prosecutors are entitled to a good deal of latitude in their closing arguments, they are bound to keep within the limits of fair and temperate discussion . . . circumscribed by the evidence in the case.” State v. Rehkop, 2006 VT 72, ¶ 35, 180 Vt. 228, 908 A.2d 488 (quotation omitted). There was no evidence presented here to suggest that a pending custody case or school trouble existed or was relevant. The defense did not attempt to suggest that D.H. might have some extraneous reason to fabricate allegations against defendant, and though the State did elicit testimony that D.H.—other than the alleged sexual acts—had a good relationship with defendant, this testimony was at most incidental to D.H.‘s descriptions of the alleged acts. Put simply, there was no suggestion during the course of the trial that D.H. may have fabricated the allegations against defendant because of a particular motive and thus the prosecutor‘s statements strayed somewhat beyond the evidence‘s confines.
¶ 51. But even if the prosecutor‘s comments went beyond the evidence, any possible error was harmless. The prosecutor‘s comments were limited and, even though the trial court overruled defendant‘s objection, the prosecutor did not continue to discuss possible motives for fabrication after the defense objection. And because the defense did not attempt to suggest that D.H. may have had some reason for fabrication, the prosecutor‘s comments had no bearing on the defense‘s theory. Nor was this statement directed at defendant‘s character or calculated to inflame the jury against defendant. See Hemond, 2005 VT 12, ¶ 12. Thus, even if technically improper, we conclude that “it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict regardless of the error.” Webster, 2017 VT 98, ¶ 24.
¶ 52. Finally, defendant argues that the prosecutor again strayed beyond the evidence by reminding jurors they had implicitly promised during voir dire that they could convict solely on the word of a child. Defendant points to our decision in Scales, in which the prosecutor made substantially the same statement regarding voir dire as the statement at issue in this case. 2017 VT 6, ¶ 25. We held that the prosecutor‘s comment “verges on impropriety” but declined to reverse on this basis—instead focusing reversal on the golden rule violation discussed above. Id. We reiterate here that a prosecutor‘s reference to voir dire discussions edges beyond the scope of the evidence presented during trial and, therefore, is technically improper. However, defense counsel properly objected to the prosecutor‘s voir dire comment in Scales and our review there was for harmless error. Id. As with the majority of the other errors defendant raises in this case, no objection was made to this statement during the prosecutor‘s closing, and our review in this case is for plain error. The prosecutor‘s comment was isolated, did not impinge on the defense, and was not directed at defendant. Having found the error at issue harmless in Scales, we will not now find the same statement plain error in this case.
Affirmed.
FOR THE COURT:
Associate Justice
Notes
Jones, 792 P.2d at 653-54 (quotation omitted). To deal with this problem, some states have enacted “continuing offense” statutes. For example, in California “[a]ny person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years” may be prosecuted for continuous sexual abuse of a child.Multiple sex offenses committed by adults upon immature and inarticulate children over a long period of time are very likely to result in an amalgamation of the crimes in the child‘s mind. . . . Where the number of offenses is so numerous even an adult would not be able to count them, the child‘s testimony will often be reduced to a general, and customarily abbreviated, recitation of what happened on a continuing basis.