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State v. Wiley (2005-435)
2007 VT 13
[Filed 02-Feb-2007]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2007 VT 13
No. 2005-435
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit
Timothy Wiley September Term, 2006
John P. Wesley, J.
Dan M. Davis, Windham County State's Attorney, and Tracy Kelly Shriver,
Deputy State's Attorney, Brattleboro, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
1. BURGESS, J. Defendant Timothy Wiley appeals from his
convictions for aggravated sexual assault, lewd and lascivious conduct with
a child, and obstruction of justice. Defendant asserts that (1) his
convictions for both aggravated sexual assault and lewd and lascivious
conduct violated the Double Jeopardy Clause, and (2) the evidence was
insufficient to sustain any of the convictions. We affirm.
2. On May 22, 2004, A.H. reported to her father, and then to
police, that her mother's boyfriend had forcible sex with her on numerous
occasions in the past several months. A.H was thirteen at the time. The
next day, police collected blankets and sheets from A.H.'s bed. Sperm and
female epithelial cells were later collected from a seminal fluid stain
found on the bedding. DNA from those cells was compared to DNA samples
from A.H. and defendant, and the two were found to be likely sources of the
cells. The State filed charges against defendant for aggravated sexual
assault and lewd and lascivious conduct in June 2004.
3. Defendant was held for lack of bail pending trial. While
incarcerated, defendant had a series of telephone conversations with A.H.'s
mother, a developmentally impaired woman. Recordings of three of the
conversations were introduced by the State at trial. In the first
conversation, from July 18, 2004, the mother indicated that she was afraid
to lose custody of A.H. Defendant suggested that the mother talk to A.H.
and tell A.H. that she's lying. In the second conversation, recorded two
days later on July 20, 2004, defendant asked the mother to talk to A.H. and
persuade her to drop the charges. Otherwise, defendant warned, he would
testify at trial and reveal information that would cause the state to take
A.H. away from her. The mother responded by saying: "Yeah. Oh, my God.
It's not good." In the third conversation, recorded February 25, 2005,
defendant told the mother: "I need your help . . . [Y]ou have to try to
remember . . . me having sex in [A.H.]'s room and then climbing out the
window." After furthering prompting by defendant, the mother twice denied
remembering having sex with defendant in A.H.'s room. Defendant replied,
"that right there isn't going to help," and told the mother that if she was
asked in court about the sexual encounter she should say that she
remembered it. Based on these recordings, the State charged defendant with
two counts of obstructing justice for threatening the mother with losing
custody of A.H. and for suggesting that she lie under oath about
remembering a sexual encounter with defendant on A.H.'s bed. After the
information was amended to add these charges, defendant waived his right to
a jury and was tried by the court.
4. A.H. testified to forced vaginal intercourse with one "Tim
Wiley" on more than five occasions in the months preceding her report to
police. A.H. also described one instance when Tim Wiley forced A.H. to
perform oral sex. According to A.H., these acts occurred while Tim Wiley
was living with her and her mother. A.H. said that she thought of Tim
Wiley as her "stepdad" and as her mother's "true boyfriend." However, A.H.
was not asked to identify the defendant sitting in the courtroom as the
perpetrator of the assaults or as the Tim Wiley she was referring to.
5. The mother, in her testimony, described living in a series of
apartments with A.H. and defendant. The mother made a courtroom
identification of defendant as the Tim Wiley with whom she and A.H. had
lived. The mother also identified the voices from the recorded telephone
conversations as those of herself and defendant. The mother stated that
she never felt threatened by anything defendant said during those
conversations and testified to remembering a sexual encounter with
defendant on A.H.'s bed. The mother maintained that she remembered the
encounter without assistance from anyone.
6. At the close of evidence, and again post trial, defendant moved
for a judgment of acquittal pursuant to Vermont Rule of Criminal Procedure
29. Defendant's motions for acquittal on the sexual assault and lewd and
lascivious conduct charges were premised on the State's failure to have
A.H. identify the defendant seated in the courtroom as the Tim Wiley who
engaged in those sexual acts. In his motions for acquittal on the
obstruction of justice charges, defendant contended that the State failed
to prove that the mother was actually made afraid by defendant's threats
and that the State failed to prove that her testimony about a sexual
encounter with defendant on A.H.'s bed was not truthful. The trial court
denied defendant's motions. Defendant's appeal challenges these rulings,
and raises the issue of whether, under the facts presented, conviction for
both aggravated sexual assault and lewd and lascivious conduct violated the
Double Jeopardy Clause.
I. Double Jeopardy
7. Defendant raises for the first time on appeal that convictions
for both aggravated sexual assault and lewd and lascivious conduct are a
violation of the constitutional prohibition against double jeopardy. A
constitutional issue not raised at trial is reviewed only for plain error.
State v. Judkins, 161 Vt. 593, 594, 641 A.2d 350, 351 (1993) (mem.). Plain
error must be both obvious and prejudicial, id., and neither is present
here.
8. The Double Jeopardy Clause provides that no person may "be
subject for the same offence to be twice put in jeopardy of life or limb."
U.S. Const. amend. V. The Clause prohibits second or subsequent
prosecutions for the same offense as well as multiple impositions of
punishment for an offense. State v. Grega, 168 Vt. 363, 382, 721 A.2d 445,
458 (1998) (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
The Double Jeopardy Clause does not, however, prevent cumulative
punishments when the Legislature has proscribed conduct by more than one
criminal statute or offense. Missouri v. Hunter, 459 U.S. 359, 367-68
(1983). "[W]hether or not a conviction and sentence may be had under each
statute is a question of legislative intent, not constitutional
prohibition." Grega, 168 Vt. at 382, 721 A.2d at 458; see also id. at 368.
In the absence of express legislative intent, we apply the test of
statutory construction first enunciated in Blockburger v. United States,
284 U.S. 299, 304 (1932). State v. Hazelton, 2006 VT 121, 24, __ Vt. __.
Under Blockburger, "two offenses are considered the same offense for double
jeopardy purposes unless each provision requires proof of a fact that the
other does not." Id. (internal quotations omitted).
9. The charges of aggravated sexual assault and lewd and
lascivious conduct did not specify the acts to which each pertained. The
aggravated sexual assault count charged defendant with committing "repeated
nonconsensual sexual acts as part of a common scheme or plan" between March
28, 2004 and May 22, 2004. The count of lewd and lascivious conduct
charged defendant with "contact between his penis and the vagina of A.H."
during the same time period. The verdict in the case was no more specific
in terms of the acts that were proven for each charge; the court stated
only that the State had proven the acts alleged beyond a reasonable doubt.
In the absence of a more specific information, defendant argues, the charge
of repeated nonconsensual sexual acts during the time at issue must have
included all of the sexual acts described by A.H. (FN1) and there was,
therefore, no remaining conduct that could be assigned to the lewd and
lascivious conduct charge.
10. Defendant is correct that aggravated sexual assault by
repeated nonconsensual sexual acts can, by its terms, encompasses
multiple-two or more-sexual acts. A.H.'s testimony described acts of
vaginal and oral intercourse; A.H. did not describe any other type of
sexual conduct by, or contact with, defendant. According to defendant, all
of the conduct alleged is therefore covered by the assault charge. In the
absence of any other improper sexual conduct to support the lewd and
lascivious charge, defendant maintains, a conviction for lewd and
lascivious conduct was impermissible because all elements of lewd and
lascivious conduct are necessary elements to sexual assault. The State
responds that under State v. Fuller two sexual acts are sufficient to
satisfy the requirement of "repeated" acts. 168 Vt. 396, 400-02, 721 A.2d
475, 479-80 (1998). Therefore, the State argues, we may assume that the
trial court found two or more, but not all, of the sexual acts to fulfill
the sexual assault charge and found whatever remaining acts fulfilled the
lewd and lascivious conduct charge. We conclude that conviction under both
charges did not violate double jeopardy. However, we need not assign acts
to one charge or another as the State suggests. Rather, we need only
determine whether the two offenses contain distinct elements to satisfy the
Blockburger test.
11. Several different elements in the two criminal statutes lead
us to conclude that the Blockburger test is satisfied. As charged in this
case, lewd and lascivious conduct consisted of: defendant wilfully
committing a lewd act upon a person under sixteen years of age with the
intent to appeal to his own sexual desires. See 13 V.S.A. 2602; State v.
Forbes, 161 Vt. 327, 332-33, 640 A.2d 13, 16 (1993) (discussing elements of
lewd and lascivious conduct with a child). Aggravated sexual assault, as
charged, consisted of: defendant, acting with intent, engaging in repeated
and compelled sexual acts with a person. See 13 V.S.A. 3252,
3253(a)(9). There is at least one element of each crime that is not a part
of the other: sexual assault includes the elements of compulsion and
engaging in a "sexual act," i.e., contact between certain body parts; (FN2)
lewd and lascivious conduct contains neither of these elements. Indeed,
lewd and lascivious conduct does not necessarily require physical contact
between the perpetrator and victim, see, e.g., State v. Johnson, 158 Vt.
344, 348, 612 A.2d 1114, 1116 (1992) (upholding lewd and lascivious conduct
conviction when defendant encouraged child to masturbate in the presence of
others), though contact was a part of the charge in this case. Further,
lewd and lascivious conduct includes the element of appealing to or
gratifying one's sexual desires. Though appealing to sexual desire may be
often associated with sexual assault, such motive is not an element of that
crime, and lewd and lascivious conduct may thus be distinguished on that
basis. See State v. Norton, 332 S.E.2d 531, 532-33 (S.C. 1985) (holding
that reindictment for committing a lewd act upon a child after acquittal
for sexual battery on a minor did not place defendant in double jeopardy
because lewdness did not require sexual battery and lewdness requires
intent of appealing to sexual desires of himself or child). But see Meador
v. State, 711 P.2d 852, 855-56 (Nev. 1985) (concluding lewdness had no
element distinct from sexual assault, and was therefore a lesser-included
offense, despite lewdness statute's requirement that person have intent of
appealing to sexual desires), disapproved of by Talancon v. State, 721 P.2d
764, 768-69 (Nev. 1986). Having found distinctions between the elements of
sexual assault and lewd and lascivious conduct, we conclude under
Blockburger that the Legislature intended to allow multiple convictions and
punishments for the same conduct under these differently defined offenses.
II. Sufficiency of Evidence
12. In reviewing the denial of a motion for acquittal, we look at
evidence presented by the State, viewed in light most favorable to State
and excluding modifying evidence, to determine whether evidence
sufficiently and fairly supports findings of guilt beyond a reasonable
doubt. Grega, 168 Vt. at 380, 721 A.2d at 457. Defendant alleges that the
evidence was insufficient in three respects: (1) A.H. did not make an
in-court identification of defendant as the perpetrator of the sexual
assaults and lewd and lascivious conduct; (2) the State did not prove that
the mother was actually made afraid by defendant's threats; and (3) the
State did not prove that the mother's testimony about a sexual encounter
with defendant on A.H.'s bed was not truthful.
13. Viewing the evidence in the light most favorable to the
State, the evidence was sufficient to support a finding that defendant was
the man who committed the acts described by A.H. In her testimony, A.H.
described sexual acts perpetrated by a man she referred to as "Tim Wiley"
while he lived with A.H. and her mother. A.H. said that she thought of Tim
Wiley as her "stepdad" and as her mother's "true boyfriend." Subsequently,
the mother testified to living in a series of apartments with A.H. and Tim
Wiley. The mother then made an in-court identification of defendant as the
Tim Wiley with whom she and A.H. had lived. Further, the police officer
who took a DNA sample from defendant also made an in-court identification
of defendant as the man who had supplied the DNA sample. This DNA sample
was compared to a seminal stain on A.H.'s bedding, and the provider of the
sample was found to be a likely source of the seminal stain. These two
independent in-court identifications of defendant-as the man with whom A.H.
and her mother had lived and the likely source of the seminal fluid stain
on A.H.'s bedding-were more than sufficient to support a finding that
defendant was the man who committed the acts described by A.H. We thus
find no error in the court's denial of defendant's motion for acquittal on
that basis.
14. The obstruction of justice statute prohibits various acts,
described in numerous clauses, intended to interfere with legal
proceedings. Two of these prohibitions are relevant to this discussion:
Whoever corruptly, or by threats or force, or by any threatening
letter or communication, intimidates or impedes any witness . . .
or corruptly or by threats or force or by any threatening letter
or communication, obstructs or impedes, or endeavors to obstruct
or impede the due administration of justice, shall be imprisoned
not more than five years or fined not more than $5,000.00 or both.
13 V.S.A. 3015. Defendant was charged under the final, omnibus clause
for both his threats against the mother and his suggestion to her that she
lie under oath. Defendant contends that the State needed to prove that the
mother was actually made afraid by defendant's threats. In support of this
argument, defendant cites State v. Ashley in which we stated that
obstruction of justice by threatening a witness requires "only that the
witness be made afraid or deterred, not that the witness be both." 161 Vt.
65, 71, 632 A.2d 1368, 1372 (1993). Defendant argues that the evidence
here indicates that the witness was neither deterred-she did, in fact,
testify-nor frightened in light of her testimony that she never felt
threatened by anything defendant said. Therefore, according to defendant,
under Ashley the State did not prove all elements of the offense.
15. Ashley construed the first clause of the statute which
provides that a threat is criminal if it "intimidates or impedes any
witness." Defendant, however, was charged under the omnibus clause with
"endeavor[ing] to obstruct or impede the due administration of justice."
With inclusion of the term "endeavor," this clause, like its nearly
identical federal counterpart, does not require that a defendant succeed
in his attempt to interfere with the due administration of justice; a mere
"endeavor" suffices. United States v. Aguilar, 515 U.S. 593, 599 (1995).
The State was thus not required to prove that the witness was deterred or
made afraid by defendant's threats, only that he attempted to influence her
actions. The evidence, viewed in the light most favorable to the State,
indicates that defendant told the witness that if his case went to trial he
would disclose information that would cause her to lose custody of her
daughter. Defendant further asked the witness, A.H.'s mother, to convince
her daughter to drop the allegations of sexual assault. This evidence
sufficiently and fairly supports a finding that defendant attempted to
obstruct or impede the due administration of justice.
16. Finally, defendant maintains that the evidence was also
insufficient to support conviction for the other count of obstruction of
justice, regarding defendant's prompting of the mother to recall a sexual
encounter on A.H.'s bed, when the State did not prove that the encounter
did not actually occur. Defendant's conclusion, however, does not
necessarily follow from the alleged absence of proof that the encounter did
not occur. First, the fact finder could reasonably find the mother's
recollection of the encounter incredible in light of the recorded
conversation with defendant in which she repeatedly states that she did not
remember the encounter and her denial while testifying that she had any
help in remembering the incident. We afford great deference to the fact
finder in weighing the credibility of witnesses. Havill v. Woodstock
Soapstone Co., 2004 VT 73, 21, 177 Vt. 297, 865 A.2d 335. The court
could thus have concluded that the story was fabricated by defendant and
repeated by the witness at his behest. Second, defendant specifically
asked the mother to lie under oath when, after she insisted to him she did
not remember a sexual encounter on A.H.'s bed, defendant told her to say
that she did remember it, if asked. Encouraging a potential witness to lie
under oath fits within the charged crime of "corruptly endeavor[ing] to
obstruct or impede the due administration of justice." See United States
v. Wesley, 748 F.2d 962, 964 (5th Cir. 1984) (affirming conviction under
federal omnibus clause for "urging and advising" a witness to testify
falsely). We therefore find the evidence sufficient to support the
conviction.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. "Sexual act" is defined for purposes of sexual assault crimes as "contact
between the penis and the vulva, the penis and the anus, the mouth and the
penis, the mouth and the 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." 13 V.S.A. 3251(1).
FN2. See note 1, supra, for the definition of "sexual act."
FN3. The federal obstruction-of-justice statute's omnibus clause provides:
"Whoever . . . corruptly or by threats or force, or by any threatening
letter or communication, influences, obstructs, or impedes, or endeavors to
influence, obstruct, or impede, the due administration of justice, shall be
punished as provided . . . ." 18 U.S.C. 1503(a). |