This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter.
Appeal from: Superior Court, Add. Crim. Division. DOCKET NO. 559-7-12 Ancr. Trial Judge: Robert A. Mello.
Reiber, C. J., Skoglund, and Robinson, JJ.
In the above-entitled cause, the Clerk will enter:
The State appeals from the trial court's exclusion of certain hearsay statements made by a putative child victim of aggravated sexual assault. The trial court concluded that the time, content, and circumstances of the statements did not provide substantial indicia of trustworthiness. The State challenges the ruling with respect to statements made during a videotaped interview and a statement that the child made to his mother. The State maintains that the trial court's findings do not support its conclusion that the statements at issue were untrustworthy. We affirm.
In July 2012, defendant was charged with aggravated sexual assault of C.H., a six-year-old boy. Defendant was fifty-three years old at the time of the alleged offense. In April 2013, the State filed notice of its intent to call witnesses at trial to testify to hearsay statements that C.H. made to his mother and others about the alleged offense. The State argued that the hearsay statements were admissible under Vermont Rule of Evidence 804a. Defendant moved to exclude this evidence.
Following three days of evidentiary hearings, the court granted defendant's motion to exclude. It made the following findings. C.H. was born in November 2004. He lives with his mother and stepfather. C.H. has a number of developmental disabilities, most notably Microcephaly and Autism Spectrum Disorder. CH.'s ability to communicate is significantly impaired and he has significant cognitive limitations. He has difficulty with his attention span, for example, and he has memory impairments that make it difficult for him to relate details of events. C.H. was not toilet trained until he was almost seven years old, and he has difficulty cleaning himself after a bowel movement. Parents must check C.H.'s bottom each day to make sure he is clean.
On Sunday, May 15, 2011, mother left C.H. in the care of defendant, who is her mother's live-in boyfriend. C.H. referred to defendant as " Papa Tom." When mother returned, C.H. insisted that she take him home. Over the next several days, C.H. seemed withdrawn. He stayed in his room and kept to himself and he was afraid to wipe his bottom for fear it would hurt. Mother and stepfather did not notice any blood in C.H.'s pants or any other sign of injury to his bottom. When mother asked if anything was wrong, C.H. did not want to talk about it.
On Wednesday, May 18, mother received a telephone call from her mother who relayed a rumor that defendant had sexually abused his own young daughter years earlier. This caused mother to wonder if anything untoward had occurred between defendant and C.H. Mother decided it was best to see if C.H. brought anything up on his own, so she did not immediately question him about her concern. The following day, C.H. was crying after school. When mother asked what was wrong, C.H. said that he didn't want to get in trouble. Mother suspected that C.H. might be crying because of something defendant had done. She asked C.H. if anyone had touched him in a bad spot. C.H. replied, " Yes Papa Tom touched me." When mother asked where, C.H. pointed to his genital area and to his bottom. In response to further questioning, C.H. told mother that defendant had stripped him down to his underwear, kissed his chest, and stuck a pencil in his butt. C.H. then made similar statements to stepfather.
The following day, Friday, May 20, mother sent C.H. to school with a note to his teacher, which said " [C.H.] has told me and his father that he has been touched in a 'bad place' by someone we know. I was wondering if the school nurse could possibly look at him. I would really appreciate it." The child's teacher gave the note to a school counselor, who called mother and spoke with her and stepfather. The counselor then spoke to C.H. with another witness present. The counselor asked C.H. about his visit with defendant. She asked if defendant had touched him in a " bad place." C.H. responded in the affirmative. When the counselor asked where defendant had touched him, C.H. pointed to his crotch and said " right here," and his rear and said " right here." The counselor thought C.H. seemed a little anxious but otherwise appeared to be " his normal self." The counselor called the Department for Children and Families (DCF).
That same day, mother took C.H. to be examined by a Sexual Assault Nurse Examiner (SANE) for any signs of sexual assault. When the SANE nurse asked C.H. what had happened, C.H. replied that Papa Tom had kissed him from his chest to his belly and put a pencil in his butt, which really hurt. When the nurse tried to examine C.H., he started crying and grabbing onto his pants to prevent them from being pulled down, rendering an examination impossible.
DCF arranged for C.H. to be interviewed by a police detective and a DCF employee on May 26. In the meantime, mother tried to discuss the alleged event with C.H. every day, even though the police and nurse had told her not to do so as it might traumatize C.H. Mother indicated that C.H. was " very quiet" and did not want to talk about it, but mother " kept pushing" because she wanted " to get as much information about it as possible." On each occasion, C.H. told mother that defendant had taken his clothes off and stuck a pencil up his butt. At one point, C.H. told mother that defendant had also kissed his penis, but he later " took that back and said, " no, that didn't happen."
On May 26, mother told C.H. that he had to go speak with a detective that day because Papa Tom had been accused of touching him. Mother told C.H. to tell the detective what he had told her. On the way to the interview, as mother reviewed the allegations with C.H. again, ...