On Appeal from Superior Court, Addison Unit, Criminal Division. Robert A. Mello, J.
Dennis M. Wygmans, Addison County Deputy State's Attorney, Middlebury, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
[¶1] Defendant appeals his conviction in Addison Superior Court on the grounds that the court erred by: (1) admitting the victim's out-of-court statements under Vermont Rule of Evidence 804a; (2) admitting expert testimony under Vermont Rule of Evidence 702; and (3) coercing a jury verdict. We affirm.
[¶2] Defendant was charged with aggravated sexual assault of a minor under the age of thirteen in violation of 13 V.S.A. § 3253(a)(8).
The victim, T.B., was twelve years old at the time of the incident that gave rise to this case. Evidence presented at trial demonstrates the following. On November 14, 2012, T.B. arrived home from school and was alone in the house with defendant, her uncle, with whom she lived. Defendant followed T.B. into her bedroom and asked her for a " hand job." He then asked T.B. to come sit in the living room where he again asked for a hand job. When she refused, he slapped her across the face and on the back of her head and forced her hand down his pants. He then told her that he wanted her to watch a video on his cell phone of a girl giving a man a hand job so that she would know how to do it. Eventually, defendant told T.B. to go in the bedroom where he forced her onto the bed, fondled and performed oral sex on her, and forced her to perform oral sex on him. After the incident, T.B. left the house and waited in the farm store across the street until her aunt came home. Later that night, T.B. wrote a letter about the incident and about how she no longer felt safe in her home. The next morning on the bus, she showed the letter to a friend, who encouraged her to tell the school principal. T.B. showed the letter to the vice principal, and the school officials called the police and a Department for Children and Families case worker.
[¶3] Prior to trial, the parties submitted two motions in limine that are the focus of this appeal. The State moved to admit T.B.'s letter under Rule 804a, which allows admission of out-of-court statements made by a child of age twelve years or under, if several factors are met. Defendant moved to exclude the testimony of the State's expert witness regarding the extraction of data from defendant's cell phone. The court held motion hearings on October 8 and 9, 2013, and ruled both the letter and expert testimony admissible. The findings and conclusions of the court with respect to these motions, as well as the arguments of the parties, are discussed in more detail in the opinion below.
[¶4] After a three-day trial, the jury found defendant guilty. Defendant appeals his conviction and raises three claims of error: (1) the trial court erred in admitting T.B.'s letter under Rule 804a because the State failed to establish that the time, content, and circumstances of the statements provided a substantial indicia of trustworthiness; (2) the trial court erred in admitting the expert testimony regarding the extraction of data from defendant's cell phone because the State failed to establish that the software and methods used are sufficiently reliable under Rule 702; and (3) the trial court coerced a jury verdict by telling the jury that if they did not reach a verdict by the end of the day they would have to stop deliberating and return Monday. We find no error and affirm the judgment of the trial court on all three points.
[¶5] We turn first to defendant's Rule 804a claim. We review the trial court's evidentiary rulings for abuse of discretion. State v. Breed, 2015 VT 43, ¶ 46, ___ Vt. ___, 117 A.3d 829. " We uphold the trial court's conclusion that hearsay statements are trustworthy under Rule 804a(a)(4) if it is supported by the findings, which must be supported by credible evidence in the record." State v. Reid, 2012 VT 65, ¶ 20, 192 Vt. 356, 59 A.3d 711.
[¶6] Vermont Rule of Evidence 804a(a) allows admission of out-of-court statements made by putative victims of aggravated
sexual assault if " the time, content, and circumstances of the statements provide substantial indicia of trustworthiness." V.R.E. 804a(a)(4). Essentially, defendant argues that the court's conclusion as to the trustworthiness of the letter is not supported by credible evidence in the record. Specifically, defendant maintains that T.B. fabricated the entire story and that the letter was the start of that fabrication. He emphasizes that the " only evidence presented in support of admission of the letter was the letter itself, and the testimony of [T.B.'s friend and the detective]," and that " [n]o one witnessed T.B. write the letter." Defendant's argument appears to be that the circumstances surrounding T.B.'s disclosure of the letter are not relevant here for establishing the letter's trustworthiness, but that the circumstances surrounding the actual writing of the letter must prove it to be trustworthy. The State, on the other hand, explains that " it is the disclosure of the note relative to the occurrence of the assault that provides indicia of trustworthiness." Defendant relies on one case, State v. Reid, 2012 VT 65, which provides a nonexclusive list of factors relevant to determining the trustworthiness of Rule 804a statements.
[¶7] The factors outlined in Reid provide a starting point for our analysis and help us establish a framework for reviewing the trial court's conclusion. As explained in Reid, courts may consider such factors as: the circumstances of the initial disclosure, including the setting and person to whom the disclosures were made; internal consistency and detail of disclosures; timing and conduct of interviews, including whether nonleading questions were asked; freshness and spontaneity of disclosures; appropriate body language; risk of fabrication; evidence of coercion or manipulation; accuracy of peripheral detail; the child's affect, intelligence, memory, and concern for the truth; and corroboration by medical and other evidence. Id. ¶ 24; see also State v. Tester, 2006 VT 24, ¶ 17, 179 Vt. 627, 895 A.2d 215 (mem.); State v. LaBounty, 168 Vt. 129, 136-38, 716 A.2d 1, 7 (1998); State v. Fisher, 167 Vt. 36, 40-41, 702 A.2d 41, 44 (1997); State v. Lawton, 164 Vt. 179, 190, 667 A.2d 50, 59 (1995); In re M.B., 158 Vt. 63, 69, 605 A.2d 515, 518 (1992); State v. Gallagher, 150 Vt. 341, 348, 554 A.2d 221, 225 (1988). As Reid states, and the cases cited therein make clear, this list is not exhaustive, and the court need not consider all the factors in finding the testimony admissible. For example, in State v. Lawton, we affirmed the trial court's admission of a child's statements as trustworthy because they were made in response to the first time the mother asked the child about incidents involving the father and were therefore not a product of repeated interviewing, coercion, or manipulation. 164 Vt. at 190, 667 A.2d at 59.
[¶8] Here, the court found T.B.'s letter trustworthy because she wrote the letter to the vice principal -- a trusted adult -- expressing her need to tell someone about the incident and her fear of going back home. The court also found the language, spelling, and writing of the letter all age appropriate, indicating that T.B. was not coached or prompted by anyone. Furthermore, the court found that when T.B. and her friend were discussing the letter on the bus -- right after the friend read the letter -- the statements were made spontaneously at a time when T.B. and her friend were not otherwise talking about sexual issues or abuse; the statements were
made to a trusted friend in a safe place; T.B.'s body language was consistent with that of someone alleging sexual abuse; and T.B.'s statements were consistent with those she made to the police. The court's findings here reflect many of the factors discussed in Reid, 2012 VT 65, ¶ 24; see supra, ¶ 7.
[¶9] Defendant maintains, however, that these findings are not sufficient to alleviate concerns that the contents of the letter were fabricated because, as defendant stresses, " [n]o one witnessed T.B. write the letter." We find no case -- and defendant cites no case -- where such statements have been held inadmissible merely because the putative victim penned the letter in private where nobody was around to attest to the circumstances surrounding its creation; in fact, it is likely that most letters of this nature, particularly those written by children, are written in private and later disclosed to a trusted peer or adult.
[¶10] Courts generally consider written statements equally as trustworthy as oral statements when reviewing such statements under hearsay exceptions like Rule 804a or under residual hearsay exception rules. See, e.g., State v. John G., 80 Conn.App. 714, 837 A.2d 829, 837 (Conn.App. Ct. 2004) (" [T]he dispositive factor in deciding whether a victim's statement properly is admissible as constancy of accusation evidence is not whether such statement is written or oral." ); Commonwealth v. Lanning, 32 Mass.App.Ct. 279, 589 N.E.2d 318, 323 (Mass.App.Ct. 1992) (" [W]e can think of no ...