On Appeal from Superior Court, Essex Unit, Criminal Division Alan W. Cook, J. (Ret.), Specially Assigned.
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Joshua S. O’Hara, Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. Defendant Frank Fellows appeals his conviction for sexual assault and lewd and lascivious conduct with a child—his daughter, S.M. First, he argues that the trial court erred by allowing the State to question his sisters about his relationship with S.M.’s mother when the mother was a minor and to use the evidence of that relationship in its closing argument to show that he acted in conformity with that prior bad act. Second, he contends that the trial court committed reversible error when it admitted testimony from S.M.’s friend relating a conversation that she had with S.M. on the day after the incident. We affirm.
¶ 2. The following facts were presented at trial. S.M., the putative victim, is defendant’s fourteen-year-old daughter. S.M.’s mother was fourteen years old, and defendant was twenty years old, when S.M. was conceived. Defendant and the mother never married, and did not live together at the time of the incident out of which the charges arose. At that time, S.M. was spending half of her time with each parent, alternating weeks with each.
¶ 3. On the evening of April 17, 2009, S.M. spent the night with her father in a camper on some land that he had owned. The two did some work moving brush and moving rock, made a fire, had dinner, and went to bed around 10 p.m. They slept on the same bed, as the other beds in the camper had objects on them. Each slept in a sleeping bag.
¶ 4. S.M. testified that she awoke sometime in the middle of the night to find her sleeping bag unzipped and defendant’s hand inside her shirt, on her stomach. She was afraid, and pretended to be asleep. She moved her arm over her breasts to protect herself, but he pushed his hand under her arm to her breasts and rubbed them. He then started to move his hand down her stomach toward her pants, at which point she tried to roll away. He used his arm and leg to pull her onto her back. This happened two or three times, and then he put his hand inside her pants outside her underwear and started touching her vaginal area. Then he put his hand inside her underwear and continued to touch her in the same area. She tried to roll away again, and he put his hand down the back of her pants inside her underwear and inserted his finger into her vagina from the back. She felt a burning sensation and pain. He removed his hand from her pants and then massaged her breasts again. He then put his hand on her left breast and left it there until the alarm went off in the morning, at which point he removed it. She let him believe that he was waking her up, and he told her that she had started to fall off the bed in her sleep a few times and that he had to keep pulling her back onto the bed. She pretended she had no idea what he was talking about. She did not get dressed, but grabbed her clothes, and he drove her to her mother’s house.
¶ 5. S.M. did not tell her mother what had happened. Her mother asked her if something was wrong, and she responded that she was tired. She did, however, send a text message while at her mother’s house to her best friend, K.D. Her mother drove her to the hospital to take a babysitting course. While S.M. was at the course, K.D. responded to her text message. S.M. wrote to K.D. that something really bad had happened, but that she was not able to talk right then. At the lunch break, she sent K.D. a text message explaining that she had woken up to her father molesting her. She told K.D. that she needed help to get away from him, so they made a plan for S.M. to spend the night at K.D.’s house.
¶ 6. After the babysitting course, defendant picked up S.M. from the hospital, as planned, and took her to a dinner at the house of his sister and brother-in-law. She asked him if she could spend the night at K.D.’s house, and he agreed. S.M. testified to feeling “a little bit... suicidal” during her time at her relatives’ house.
¶ 7. After the dinner, defendant took S.M. to K.D.’s house. As soon as she entered the house, S.M. began to cry. While S.M. was at K.D.’s house, she received a text message from her older sister, S.F., saying that she was in town, and S.M. responded, telling her not to go to defendant’s house. S.F. called but S.M. was too upset to speak to her, so she handed the phone to K.D. and K.D. related to S.F. what had happened. S.F. then came to K.D.’s house. S.F. called S.M.’s mother and informed her of the situation. S.M.’s mother then came to K.D.’s house to speak to her daughter. She then called the police, and took S.M. to the hospital, where S.M. was too upset to speak to the staff but provided a written statement. Because no one at the hospital was qualified to perform a sexual assault examination on a minor, S.M.’s mother took S.M. to Dartmouth Hitchcock Medical Center the next day. On the Monday following the incident, S.M. went to the Department for Children and Families for an investigation.
¶ 8. Defendant was charged with sexual assault and lewd and lascivious conduct. Defendant denied the charges, and the case went to trial by jury. In addition to S.M., the witnesses for the State at trial were a clinical psychologist who testified as an expert witness, K.D., the nurse practitioner who examined S.M. at Dartmouth, S.M.’s counselor, S.M.’s teacher, S.F., and the trooper who conducted the initial interview with defendant. Through the trooper, an audio recording of defendant’s interview with him soon after the incident was introduced and played for the jury. In that interview, defendant expressed confusion and frustration, stating that S.M. would not lie, but that he did not remember having touched her. He raised the possibility that he might have done so in his sleep. At one point in the interview, defendant stated, “I never knew if she woke up.” The witnesses for the defense were defendant’s two sisters. Some details of the trial are provided in the discussion below as needed.
¶ 9. The jury convicted defendant; he was sentenced to five years to life imprisonment for the sexual assault conviction and five to fifteen years for the lewd and lascivious conduct conviction, the ...