State v. Willis

State v. Willis (2004-154)

2006 VT 128

[Filed 22-Nov-2006]

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.

2006 VT 128

No. 2004-154

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 3, Washington Circuit

Kim A. Willis November Term, 2005

M. Patricia Zimmerman, J.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney
General, Montpelier, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

PRESENT: Dooley, Johnson, Skoglund and Burgess, JJ., and
Gibson, J. (Ret.), Specially Assigned

¶ 1. BURGESS, J. Defendant Kim Willis appeals from his
conviction, after a jury trial, of one count of sexual assault on a minor
and two counts of lewd and lascivious conduct with a child. He argues that
the trial court committed reversible error by: (1) admitting hearsay
statements from one of the victims, Z.S., under Vermont Rule of Evidence
804a; (2) refusing to sever the lewd and lascivious count involving Z.S.
from the counts involving another victim; (3) allowing the State to amend
one of the counts during trial; and (4) denying his request to inquire into
Z.S.'s sexual history. We affirm.

¶ 2. Defendant worked as a part-time care provider at the Vermont
Crisis Intervention Network (VCIN) in Moretown, Vermont. In April 2001, he
was charged with engaging in lewd and lascivious conduct with, and sexual
assaulting, J.G., a developmentally disabled child receiving services from
VCIN. Defendant was also charged with engaging in lewd and lascivious
conduct with Z.S., another developmentally disabled child under his
supervision. Both children disclosed the abuse to others.

¶ 3. The State moved to admit the children's hearsay statements at
trial pursuant to V.R.E. 804a. Rule 804a allows a witness to testify to
hearsay statements made by a mentally retarded individual if the trial
court finds that: (1) the statements are offered in a sexual abuse case
where the mentally retarded person is the alleged victim; (2) the
statements were not taken in preparation for a legal proceeding; (3) the
individual is available to testify; and (4) the "time, content and
circumstances of the statements provide substantial indicia of
trustworthiness." V.R.E. 804a(a)(1)-(4). After a hearing, the trial court
concluded that the requirements of the rule were satisfied and the
statements were admissible at trial.

¶ 4. In reaching its conclusion, the court made the following
findings. J.G. was born in April 1986. He has mild autism and pervasive
development disorder, and he requires constant supervision except to sleep.
J.G. lived with his grandmother and legal guardian until he was ten years
old. He then moved into a developmental care home. Between mid-January
2001 and February 22, 2001, J.G. was staying at VCIN.

¶ 5. On February 16, 2001, J.G. disclosed to his community
outreach specialist that he had watched a movie at VCIN that "showed men
and women licking each others butts and penises and the girls' 'rogina.' "
J.G. stated that he had "licked someone's penis and it was done to him."
He said that he could not disclose who had done it "because this person
would be mad." The specialist reported the incident to her supervisor, who
arranged to have J.G. interviewed. Prior to the interview, J.G. made
additional disclosures about the abuse to his grandmother, and to an
employee of the Department for Children and Families (DCF). J.G.
identified defendant as the perpetrator.

¶ 6. On February 21, 2001, J.G. was interviewed by a Vermont State
Trooper and a DCF investigator. J.G. provided extensive detail about the
abuse. He recounted watching a movie with defendant about "cuddling." He
described "cuddling" as

like men and boys, ah, like do like that licking and, ah tickling
men's, I mean woman's and girl's butts and, and, ah, woman and
girls, um, putting their mouths on men's virgins or their penises
and, ah, and ah, woman and girls like to make strange noises like
oh that feels good, like crying and pouting and stuff, those kinds
of noises . . . .

¶ 7. Before, during, and after watching the movie, J.G. explained
that he and defendant "cuddled each other." He described this as "cuddled
like, ah, he touched my penis and rubbed my butt and tickles, um, put my
hand . . . and then I rubbed his butt and I touched his penis and then we
took a shower." J.G. stated that defendant sucked and pulled his penis and
then he did the same to defendant. J.G. said they "cuddled" until about 11
or 12 at night and then "early in the morning like about 5, 4:30, 4:30, 5,
we got up and did it again and then we went back to bed and then it was
6:30, got up at 6:30 and then, ah, that was it." J.G. provided a graphic
and detailed description of having anal and oral sex with defendant and
vice versa.

¶ 8. J.G. stated that defendant told him that if they kept cuddling,
defendant would buy him anything he wanted at the store. The next day,
defendant had no money so defendant gave him some items from his house
instead. Defendant told J.G. not to tell anyone about what had happened
because "you and me would both get into big trouble."

¶ 9. In light of J.G.'s disclosures, State authorities scheduled
an interview with Z.S., who similarly had unsupervised contact with
defendant. Z.S. was born in August 1986. He had a history of
developmental delay and neuromotor problems resulting in gross motor and
fine motor and speech disabilities. He had a hearing loss of a moderate
degree. His IQ was 46, which indicated a significant subaverage
intellectual functioning. Z.S. had problems walking, he was unbalanced, he
had speech problems, and he acted much younger than his chronological age.
He lived with a trained care provider, and required twenty-four hour
supervision.

¶ 10. Z.S. was interviewed by a State Trooper on February 22, 2001,
the day after J.G.'s interview. Ms. Boardman, the DCF investigator, was
also present, and she took notes. The purpose of the interview was to ask
Z.S. if anyone had touched him inappropriately. The interview lasted about
one-half hour as Z.S. did not want to answer questions. During the initial
portion of the interview, before the tape-recorder was activated, Z.S.
stated that defendant "touched my privates."

¶ 11. On the evening after the interview, during his bath time, Z.S.
acted strangely and made odd comments to his respite care provider who had
been looking after Z.S. for approximately two years. While getting ready
for his bath, Z.S. asked if his testicles were going to fall off. During
the bath, Z.S. was scrubbing his private parts very hard. He began hitting
his private parts and hollering "bad." Z.S. never exhibited such behavior
before, nor had he previously made any such statements. The respite worker
was aware that Z.S. had been interviewed by DCF that day but he did not
know the purpose of the interview nor the contents of any statements that
Z.S. made.

¶ 12. The following morning, Z.S. was in the kitchen and tried to
punch the respite worker between the legs. Z.S. had never done this
before. Z.S. stated that defendant touched him there. The respite worker
asked, "[Defendant] touches you there?" and Z.S. replied, "Yes." The
respite worker asked when this happened, and Z.S. replied, "When I played
my game." Z.S. stated that he had not told anyone because he did not want
to get into trouble. He also stated that the incident happened because he
was bad and it was his fault. The respite worker called the boy's
residential care provider and advised him of Z.S.'s statements.

¶ 13. At the Rule 804a hearing, defendant argued that the
children's statements should not be admitted, and he presented expert
testimony to challenge the reliability of the disclosures. The court was
not persuaded by the expert's testimony. Instead, based on the facts above
and numerous additional findings, the court concluded that the children's
statements were reliable and admissible. As to J.G., the court explained
that he provided consistent detailed statements about the abuse, and his
statements raised a strong suspicion that sexual acts occurred with
defendant. The court concluded that the statements appeared trustworthy
and they were not taken in preparation for legal proceedings.

¶ 14. The court found Z.S.'s hearsay statements similarly
admissible. It explained that Z.S. made spontaneous disclosures to the
respite worker, a trusted adult. Z.S. had never made such statements
before, nor had he behaved in a similar fashion. The information that Z.S.
provided to the respite worker, including his identification of defendant,
was consistent with that provided to the trooper and DCF investigator.
Thus, looking at the totality of the circumstances, the court found that
the time, content, and circumstances of the statements demonstrated
sufficient indicia of reliability, and Z.S.'s statements to the respite
worker were not taken in preparation for legal proceedings.

¶ 15. The court reached a similar conclusion with respect to Z.S.'s
statements to the trooper and DCF investigator. As to reliability, the
court explained that, at the time of the interview, the interviewers
possessed no knowledge that Z.S. had been abused; he was interviewed only
because of J.G.'s disclosures and the fact that he had had unsupervised
contact with defendant. The court found that, although the suggested
interview protocol was not followed initially because the tape recorder was
not turned on, this fact alone did not render the statements untrustworthy.
In a later part of the interview, which was recorded, the transcript
reflected the interviewer's "recap" of the statements made in the nontaped
portion of the interview. The court found the trooper's notes from the
untaped interview consistent with what Z.S. said during the taped portion
of the interview. The court also found that, although the trooper asked
Z.S. a leading question-"whether any adult had ever touched his
privates"-there was nothing in the question to suggest any particular
person. Z.S.'s disclosure was also consistent with statements made to the
respite worker. Finally, the court found that although Z.S. was not a
"willing" interview participant, he twice described the same sexual
activity with defendant. Thus, looking at the totality of the
circumstances, the court concluded that the statements showed sufficient
indicia of reliability.

¶ 16. In reaching its conclusion, the court considered the expert
testimony offered by defendant, but determined that there had not been such
significant breaches of interviewing protocol that the boys' statements
should be deemed untrustworthy. The court found no coaching or suggestive
questions so egregious as to compromise the result of the interview. It
explained that any inconsistencies between the boys' deposition testimony
and their hearsay statements were for the factfinder to resolve at trial.

¶ 17. The court also found that Z.S.'s statements were not taken in
preparation for legal proceedings, reiterating that Z.S. was interviewed
for the first time on the day after J.G.'s interview, and that Z.S. had not
disclosed any abuse prior to the interview. Additionally, the court
explained, Z.S. and J.G. did not know one another, and they had never been
in the same placements at the same time. The court thus found all of the
hearsay statements admissible under Rule 804a.

¶ 18. The State relied on the children's hearsay statements at
trial, among other evidence. The children also testified and were subject
to cross-examination. Defendant testified on his own behalf, asserting
that the abuse did not occur. The jury found defendant guilty on all
counts, and this appeal followed.

¶ 19. Defendant first argues that the trial court erred in
admitting Z.S.'s hearsay statements to the trooper and DCF investigator
because they lacked substantial indicia of trustworthiness. In support of
this assertion, defendant points to testimony by his expert witness that
the questioning of Z.S. was improper and that Z.S.'s statements were
insufficiently descriptive. Defendant asserts that all of the trooper's
questions were leading and notes that the initial portion of the interview
was not tape-recorded.

¶ 20. We reject these arguments, which are at odds with our standard
of review. The trial court "has great discretion in admitting or excluding
evidence under [Rule 804a], and we will not reverse such decisions unless
there has been an abuse of discretion resulting in prejudice." State v.
Fisher, 167 Vt. 36, 39, 702 A.2d 41, 43 (1997). As detailed above, the
trial court made numerous findings to support its conclusion that Z.S.'s
statements possessed sufficient indicia of reliability, and the findings
are supported by credible evidence in the record. See State v. Gallagher,
150 Vt. 341, 348, 554 A.2d 221, 225 (1988) (Supreme Court will uphold trial
court's finding that hearsay statements were trustworthy under Rule
804a(a)(4) if finding is supported by credible evidence in the record). We
do not recount all of the court's findings here, but note that it found
that Z.S. consistently described the abuse and consistently identified
defendant as the perpetrator. Despite the defense expert's criticism that
the investigators failed to follow best interview practices, the trial
court was not persuaded, and concluded that there had not been such
significant breaches of the interviewing protocol as to render Z.S.'s
statements untrustworthy. It is not the role of this Court to reweigh the
evidence or reassess the credibility of witnesses. See State v. Tenney,
143 Vt. 213, 216, 464 A.2d 747, 748 (1983) (where contradictory evidence is
introduced, it is exclusive province of factfinder to resolve
contradictions and decide whom to believe). We therefore reject
defendant's first claim of error.

¶ 21. We similarly reject defendant's assertion, raised for the
first time on appeal, that Z.S.'s statements to the trooper were taken in
preparation for legal proceedings. Defendant maintains that Z.S.'s
statements must have been taken in preparation for a legal proceeding
because Z.S. no longer had any contact with defendant, and thus, the object
of the interview could not have been to protect Z.S.

¶ 22. Even if defendant had preserved this argument, we would find
it without merit. Contrary to defendant's suggestion, we have never held
that a child must need protection from his victimizer before this criterion
can be satisfied. Cf. Fisher, 167 Vt. at 42, 702 A.2d at 45 (explaining
that statements taken by DCF investigators are generally "not to make a
case against the accused, but to ascertain the reliability of the
accusations so the child can, if necessary, be protected"). Instead, to
determine if a child's statements were taken in preparation for a legal
proceeding, we look to the "totality of the circumstances to determine
whether the interviews were primarily to investigate the allegations or
primarily to prepare a legal action against the accused." Id. The
"factual circumstances as interpreted by the trial court must govern," and
we will not disturb the court's findings unless they are clearly erroneous.
State v. Blackburn, 162 Vt. 21, 24, 643 A.2d 224, 226 (1993).

¶ 23. The interview here was plainly investigatory. Z.S. had not
disclosed any abuse before he was interviewed for the first time, nor did
the investigators possess any knowledge that he had been abused. See
Fisher, 167 Vt. at 42, 702 A.2d at 45 (holding that statements gathered
during a child's initial interview with DCF and police, which was held
within a week of the initial disclosure to DCF, were not taken in
preparation for a legal proceeding); Blackburn, 162 Vt. at 25, 643 A.2d at
226 (concluding that statements derived from a child's fourth interview
with DCF investigators and police, which was conducted at the police
station and videotaped, were not taken in preparation for legal
proceedings). There is no support for defendant's assertion that the
interview was an attempt to preserve Z.S.'s statements for future legal
proceedings. Cf. Blackburn, 162 Vt. at 25, 643 A.2d at 226 ("Where the
child's testimony against a potential defendant is clear and consistent and
further interviews simply repeat or preserve what has already been said,
the only reasonable view may be that preparing legal proceedings was the
primary focus."). Z.S.'s hearsay statements were properly admitted under
Rule 804a.

¶ 24. Defendant next argues that the trial court erred by refusing
to sever the lewd and lascivious conduct count involving Z.S. from the
counts involving J.G. Defendant asserts that the charged offenses were not
part of a "single scheme or plan" under Vermont Rule of Criminal Procedure
8(a)(2), and thus he was entitled to severance as a matter of right.
Assuming that the counts were properly joined under Rule 8(a)(2), defendant
maintains that severance was necessary to ensure that he received a fair
determination of his guilt or innocence. According to defendant, he
suffered prejudice from the counts being tried together because he would
have been "less likely" to testify in the case involving Z.S., and the
evidence of other bad acts involving J.G. would have been inadmissible.

¶ 25. Defendant waived his claim of error by failing to renew his
motion to sever at the close of the evidence. See V.R.Cr.P. 14(b)(4)(C)
(defendant must renew pretrial motion to sever before or at the close of
all of the evidence or the claim is waived); State v. Venman, 151 Vt. 561,
566, 564 A.2d 574, 578 (1989) (trial court has discretion in ruling on
severance request, and motion must be renewed at close of evidence to allow
trial court to "make this discretionary determination when the relevant
facts are known"). He fails to show plain error. See State v. Pelican,
160 Vt. 536, 538-39, 632 A.2d 24, 26 (1993) ("Plain error exists only in
exceptional circumstances where a failure to recognize error would result
in a miscarriage of justice, or where there is glaring error so grave and
serious that it strikes at the very heart of the defendant's constitutional
rights.") (citation omitted).

¶ 26. Pursuant to V.R.Cr.P. 8(a), two or more offenses may be joined
for trial when the offenses: "(1) are of the same or similar character,
even if not part of a single scheme or plan; or (2) are based on the same
conduct or on a series of acts connected together or constituting parts of
a single scheme or plan." Where the offenses are joined solely because
they are of the same or similar character, a defendant is entitled to
severance as a matter of right. V.R.Cr.P. 14(b)(1)(A). When the offenses
are joined because they form part of a single scheme or plan, however,
there is no absolute right to severance. Venman, 151 Vt. at 565, 564 A.2d
at 577-78. The defendant must instead show before trial that severance is
appropriate or, at trial, necessary for "a fair determination" of his
"guilt or innocence of each offense." V.R.Cr.P. 14(b)(1)(B).

¶ 27. In this case, the trial court determined that the charged
offenses were not joined solely because they were of the same or similar
character, but rather, because the acts formed part of a common scheme.
The court explained that both boys were placed in defendant's care, both
were disabled, both were the same age and sex, two of the counts alleged
the same acts, and both boys were more vulnerable than other boys due to
their disabilities. The court rejected defendant's claim that he would be
prejudiced by having the counts tried together. It found defendant's
assertion that he would be less apt to testify in the case involving Z.S.
insufficient to show that severance was "appropriate" for a fair
determination of his "guilt or innocence of each offense." V.R.Cr.P.
14(b)(1)(B).

¶ 28. The court's conclusion that the charged offenses were part of
a common scheme or plan is consistent with our case law. We addressed a
similar situation in State v. Johnson, 158 Vt. 344, 612 A.2d 1114 (1992).
In that case, the defendant, a camp counselor, was charged with seven
counts of lewd or lascivious conduct with a child; the counts involved the
defendant's conduct toward four different boys, each with mental
disabilities, over a two-week period. Id. at 346, 612 A.2d at 1115. We
rejected the defendant's argument that he was entitled to severance as a
matter of right, finding that the charged acts were part of a common scheme
or plan. Id. at 350-51, 612 A.2d at 1117-18. As we explained, in each of
the seven counts the "defendant was accused of taking advantage of his
position as camp counselor to sexually exploit young, male, mentally
handicapped campers during a two-week camp session held in one location."
Id. at 351, 612 A.2d at 1118. On these facts, we concluded that the
offenses were not only the same or similar in character but they were also
connected together or constituted parts of a single scheme or plan. See
id. (recognizing that "[o]f course, in a given situation offenses may be of
the same or similar character, and, at the same time, constitute a series
of connected acts or parts of a single scheme").

¶ 29. We reached a similar conclusion in State v. LaBounty, where
the defendant was charged with two counts of aggravated sexual assault,
each involving a different victim. 168 Vt. 129, 131, 716 A.2d 1, 3 (1998).
In that case, the alleged assaults occurred while the children were
attending day care at the defendant's home. Id. at 131-32, 716 A.2d at
3-4. We concluded that, although the assaults were separated by a period
of four to nine months, they evinced a common objective, plan, and method,
and thus were properly joined for trial under V.R.Cr.P. 8(a)(2). Id. at
133, 716 A.2d at 4-5. As we explained, each of the assaults involved a
young victim who attended the same day-care center, each was made possible
by defendant's exploiting his position of trust at the day-care center,
each occurred when defendant's wife was not present and when the defendant
was assured of privacy, each was followed by a warning of the child not to
tell, and each assault appeared to follow a similar pattern. Id. at 133,
716 A.2d at 5. In reaching our conclusion, we rejected the defendant's
argument that the charged offenses could not have been part of a common
scheme or plan because they were separated in time. Id. at 134, 716 A.2d
at 5.

¶ 30. We are faced with a similar situation here. The joined
offenses involved allegations of similar conduct by defendant, the victims
were mentally handicapped children staying at VCIN, both victims were the
same age and sex, each offense was made possible by defendant's
exploitation of his position of trust at VCIN, each incident occurred when
defendant was assured of privacy, the incidents occurred in the same
location, and the victims were particularly vulnerable due to their
disabilities. As in the cases discussed above, the offenses here "were
connected to each other in time and space, the profile of the victims, the
relationship of the victims to defendant, and the opportunity presented to,
and exploited by, defendant." Johnson, 158 Vt. at 351, 612 A.2d at 1118.

¶ 31. We reject defendant's assertion that because the offenses were
somewhat separated in time, they cannot be considered part of a common plan
or scheme. We have recognized that there is "no hard-and-fast rule
regarding time limits, and that the necessary proximity must vary with the
circumstances." LaBounty, 168 Vt. at 134, 716 A.2d at 5 (citation omitted)
(citing cases that involved a gap between offenses of seven months and one
that concerned a series of sexual assaults against minors over a period of
several years). Additionally, as we have noted, "a lapse of time between
offenses may occur simply because a defendant has lacked the opportunity to
put a plan into effect." Id. (citation omitted). Given the facts
described above, we find no plain error in the court's conclusion that the
offenses were part of a common plan or scheme.

¶ 32. We thus turn to defendant's assertion that the court
committed plain error in denying his request because severance was
"necessary" to ensure that he received a fair determination of his guilt or
innocence. See V.R.Cr.P. 14(b)(1)(B). We recognize that, when multiple
offenses are joined for trial, potential prejudice may arise from: (1) a
defendant's fear of testifying on his own behalf on one count because of
the effect of such testimony on the other count; (2) the danger that proof
of one count will have prejudicial effect on the other count as
inadmissible evidence of another crime; and (3) the danger that the jury
will cumulate the evidence of separate offenses against the defendant and
conclude that he is a "bad man." Reporter's Notes, V.R.Cr.P. 14.

¶ 33. A defendant is not entitled to severance, however, merely
because he will suffer some prejudice from joinder. Rather, he must
provide the trial court with "substantial evidence of prejudice" to support
his claim. Venman, 151 Vt. at 567, 564 A.2d at 579. As the United States
Court of Appeals for the Second Circuit has explained in addressing
analogous federal rules, "[g]ranting separate trials under Rule 14 simply
on a showing of some adverse effect, particularly solely the adverse effect
of being tried for two crimes rather than one, would reject the balance
struck in Rule 8(a), since this type of prejudice will exist in any Rule
8(a) case." United States v. Sampson, 385 F.3d 183, 190 (2d Cir. 2004)
(quotations omitted).

¶ 34. In this case, defendant's pretrial claim of prejudice-that he
would be "less likely" to testify in the case involving Z.S. and "more
likely" to testify in the case involving J.G.-is related to one of the
purposes served by the severance rule. "Courts have recognized that
prejudice may develop when an accused wishes to testify on one but not the
other of two joined offenses which are clearly distinct in time, place and
evidence." Id. at 190-91 (quotations omitted). As one court has
explained:

[B]ecause of the unfavorable appearance of testifying on one
charge while remaining silent on another, and the consequent
pressure to testify as to all or none, the defendant may be
confronted with a dilemma: whether, by remaining silent, to lose
the benefit of vital testimony on one count, rather than risk the
prejudice (as to either or both counts) that would result from
testifying on the other.

Baker v. United States, 401 F.2d 958, 976 (D.C. Cir. 1968).

¶ 35. Nonetheless, "a mere unexplicated assertion of the desire to
testify on only one count is not enough to require severance." Sampson,
385 F.3d at 191 (quotations omitted). Rather, a defendant must

present enough information regarding the nature of the testimony
he wishes to give on one count and his reasons for not wishing to
testify on the other . . . to satisfy the court that the claim of
prejudice is genuine and to enable it intelligently to weigh the
considerations of "economy and expedition in judicial
administration" against the defendant's interest in having a free
choice with respect to testifying.

Baker, 401 F.2d at 977.

¶ 36. Defendant failed to make such a showing here. In its pretrial
decision, the trial court found that defendant presented no specific
evidence that its refusal to sever the counts would necessarily chill
defendant's right to remain silent or take the stand. As the court
explained, defendant was presumed innocent and he had the right, regardless
of the court's decision, to decide whether to testify at trial. See
Johnson, 158 Vt. at 350, 612 A.2d at 1117 (recognizing that trial court has
"considerable discretion" in deciding whether severance is necessary when
counts are joined as part of a common plan or scheme).

¶ 37. By failing to renew his motion to sever at trial, defendant
failed to make any showing that the prejudice he claimed before trial had
actually come to pass. See Reporter's Notes, V.R.Cr.P. 14 (renewal of
motion to sever is necessary "to show that the potential prejudice which [a
defendant's] pre-trial motion claimed has actually occurred"); see also
Venman, 151 Vt. at 566, 564 A.2d at 578. Renewal of a motion to sever is
required because "the extent of the prejudice resulting from joinder may
not be apparent until the trial unfolds." Venman, 151 Vt. at 567, 564 A.2d
at 578 (citation omitted). Thus,

it is appropriate for the defendant to renew the motion in order
to alert the court of the necessity for reconsidering its original
decision. By placing the burden upon the defendant to renew the
motion, the standard permits the defendant to reevaluate the issue
of prejudice and to elect to proceed with a consolidated trial
despite the risk of prejudice. Therefore, failure to renew the
motion constitutes a waiver of any right to severance.

Id. (citation omitted). In this case, as in Venman, 151 Vt. at 567, 564
A.2d at 579, defendant waived his right to severance by failing to renew
his motion at trial, and he is therefore precluded from raising the trial
court's denial of his motion as error on appeal.

¶ 38. Even assuming defendant preserved his claim, however, we would
find it meritless. As reflected above, defendant merely stated before
trial that he would be "more likely" to testify in the case involving J.G.
and "less likely" to testify in the case involving Z.S. He reiterates this
same claim on appeal, now asserting that the trial court's decision
"directly affected how he conducted his defense." This statement is
plainly insufficient to show substantial prejudice. See United States v.
Werner, 620 F.2d 922, 930 (2d Cir. 1980) (rejecting defendant's claim of
prejudice based on assertion that, had his motion to sever been granted, he
would have testified on one count and not the other, and stating that "[i]t
is settled that a mere unexplicated assertion of this sort is not enough").
Defendant offered no specific explanation as to what his testimony would
have been in the case involving J.G., nor did he explain why he could not
give this testimony at a joint trial. See id. (basing conclusion on
similar reasoning); Baker, 401 F.2d at 977 ("[N]o need for severance exists
until the defendant makes a convincing showing that he has both important
testimony to give concerning one count and a strong need to refrain from
testifying on the other."); see also United States v. Jamar, 561 F.2d 1103,
1108 n.9 (4th Cir. 1977) ("[A] particularized showing must be made
concerning the testimony the defendant wishes to give and his reasons for
remaining silent on the joined counts, so that the court can make an
independent evaluation of whether the defendant will be prejudiced to an
extent that outweighs the interest favoring joinder.").

¶ 39. Indeed, defendant's position in both cases was that the
children were lying about being abused, and he testified to this effect at
trial. His direct and cross-examination were unremarkable. He does not
point to any damaging impeachment that occurred as the result of the counts
being tried together, nor does he identify any specific testimony that he
would have otherwise provided. We note, moreover, that as in LaBounty and
Johnson, "[e]vidence relating to both offenses would have been admissible
in separate trials to show a common scheme or plan under V.R.E. 404(b)."
LaBounty, 168 Vt. at 135, 716 A.2d at 6; see also Johnson, 158 Vt. at 352,
612 A.2d at 1119 (stating that "the common features of defendant's conduct,
the settings, and the victims, would have permitted admission of the
evidence under 404(b)"). Thus, defendant fails to show how he suffered any
prejudice, let alone substantial prejudice, from having the counts tried
together, and we find no plain error in the trial court's denial of his
motion to sever.

¶ 40. Defendant next asserts that the State should not have been
allowed to amend the information on the lewd and lascivious conduct count
involving Z.S. during trial. The original information alleged that during
the summer of 2000, defendant fondled Z.S.'s penis in violation of 13
V.S.A. § 2602. The allegation was based on Z.S.'s initial statements that
defendant had touched his "front privates" and the abuse occurred during
the previous summer while Z.S. was playing a video game at defendant's
house. At his September 2002 deposition, which took place one year before
trial, Z.S. testified, instead, that defendant touched him during the
course of a shower while Z.S. was staying at VCIN. Z.S. stayed at VCIN in
March 2000.

¶ 41. Approximately one week before trial, on September 17, 2003,
the State moved to amend the information on all three counts. As to the
count involving Z.S., the State sought to amend the time frame from "during
the summer of 2000" to "during the spring and/or summer of 2000." The
State asserted that the amendment would not prejudice defendant. It
explained that the changes were for small increments of time, defendant had
not given notice of an alibi defense, and the changes simply expanded the
time to cover those periods during which defendant had access to the
alleged victims.

¶ 42. Two days later, on September 19, the court denied the motion
with respect to the count involving Z.S. with leave to renew the motion in
the future or during trial. The court expressed its concern that there had
not been any discovery for the time period prior to summer 2000;
specifically, it was concerned about the VCIN activity logs for Z.S.'s stay
in March 2000. The State indicated that it was trying to get the logs, and
the record indicates that the State received the logs and delivered them to
defendant on September 19. The State agreed, in connection with a motion
filed by defendant to limit the State's examination of Z.S., to avoid
references to Z.S.'s stay at VCIN when initially questioning Z.S.

¶ 43. At trial, the State asked Z.S. if defendant had ever done
anything that Z.S. did not like. Z.S. said, "yes," and he stated,
consistent with his deposition testimony, that the abuse occurred "at
crisis house." Z.S. explained that defendant walked into the bathroom when
he was taking a shower, which Z.S. did not like. The State then asked if
defendant did anything that Z.S. did not like while they were at
defendant's house, and Z.S. replied, "Not at his house. . . . It was at
crisis house, not at his house." Z.S. then stated that defendant touched
him in his private areas during the course of a shower at VCIN. He
testified that he thought there was snow on the ground when the incident
occurred.

¶ 44. Defense counsel cross-examined Z.S. and asked him about his
deposition testimony. A portion of the deposition testimony was also played
for the jury. On the tape, Z.S. stated that the incident occurred at VCIN
during a shower and it happened in the spring. Z.S. reiterated these
statements on cross-examination.

¶ 45. Following Z.S.'s testimony, the State again moved to amend the
information to cover "spring or summer 2000." The State asserted that
defendant had been aware of Z.S.'s deposition testimony for almost one
year. Defendant also knew that Z.S. was staying at VCIN in March 2000, and
that defendant supervised him at that time. The State also noted that it
had provided defendant with Z.S.'s VCIN activity logs. The State argued
that, given Z.S.'s trial testimony, there was enough evidence for the jury
to find that defendant touched him in the spring of 2000 at VCIN.

¶ 46. After an off-the-record discussion, the trial court allowed
the amendment, concluding that it was not unduly prejudicial because the
issue had been apparent since Z.S.'s deposition almost one year earlier.
The court noted that it had initially denied the request because, at that
time, it was advised that no discovery had been done or provided to
defendant for the spring 2000 period. The State subsequently provided
defendant with the VCIN logs covering Z.S.'s ten-day stay at VCIN, which
consisted of approximately twenty pages, with one entry by the staff member
on that day's shift. Moreover, the court explained, the issue of Z.S.'s
inconsistent statements was clearly in front of the jury and it would be in
front of the jury regardless of its decision. The court found that Z.S.
testified at trial consistently with his deposition testimony, and the
State was entitled to amend the information to be consistent with that
testimony. The court found it of little moment that the State moved to
amend shortly before trial, noting that the State acted within the deadline
to file pretrial motions. It explained that the State had afforded the
defense leeway in light of the last-minute nature of trial preparation, and
it found that the State was entitled to similar treatment. The court
therefore granted the State's motion to amend the information to read
"spring-summer of 2000."

¶ 47. Defendant argues on appeal that the court erred in allowing
the amendment because it "completely changed the crime" and prevented him
from being able to intelligently prepare a defense. He maintains that
during discovery, his attorney did not review any records concerning Z.S.'s
stay at VCIN during the spring of 2000 because they were irrelevant to the
crime charged. He also argues that amending the count had a prejudicial
impact on the charges involving J.G. because the amendment made the crimes
appear more similar.

¶ 48. We find no error. Pursuant to V.R.Cr.P. 7(d), the trial court
may permit an amendment during trial to cure, among other things,
"misstatement of the time or date of an offense if not an essential element
of the offense," as long as "no additional or different offense is charged
and if the substantial rights of the defendant are not prejudiced." Rule
7(d), like the general rule that the allegations in the information and the
proof must conform,

is based on the firmly established requirements: (1) that the
accused shall be informed of the charge with such particularity
that he will be able to prepare his defense intelligently, and
will not be taken by surprise by the evidence adduced at trial;
and (2) that he may be protected from a subsequent prosecution for
the same offense.

State v. Burclaff, 138 Vt. 461, 464, 418 A.2d 38, 40 (1980) (citations
omitted). Defendant fails to establish that his substantial rights were
prejudiced by the amendment at issue here.

¶ 49. Contrary to defendant's suggestion, the amendment did not
"completely change the charged crime." As an initial matter, we note that
"time is not an essential element" of the crimes at issue here. State v.
Ross, 152 Vt. 462, 465, 568 A.2d 335, 337 (1989); see also State v. Dunbar,
152 Vt. 399, 403, 566 A.2d 970, 972 (1989) ("time is not of the essence in
charges of sexual assault or lewd and lascivious conduct"). More
significantly, as the trial court found, defendant was aware one year
before trial of Z.S.'s testimony that the incident occurred at VCIN during
the spring of 2000, rather than at defendant's house in the summertime.

¶ 50. We addressed a similar situation in Dunbar. In that case,
the defendant argued that the trial court erred by allowing the State to
amend its information shortly before trial, changing the time of offense
from "on or about July 1, 1985," to "during the summer of 1985." 152 Vt.
at 403, 566 A.2d at 972. The amendment followed the defendant's filing of
a notice of alibi for "on or about July 1." While the defendant conceded
that time was not of the essence in charges of sexual assault or lewd and
lascivious conduct, he argued that allowing the amendment after he filed
his notice of alibi subverted the requirement of reasonable particularity
in criminal informations. Id.

¶ 51. We rejected this argument, explaining that the State's
obligation to the defendant ended when it advised him within reasonable
limits under the totality of circumstances when the offense was alleged to
have been committed. Id. at 403, 566 A.2d at 973. We explained that there
had been extensive pretrial discovery, in which the alleged victim was
deposed, and the nature of the State's case fully exposed. We concluded
that the defendant could not have been unduly surprised by the amendment to
the information and he did not argue, except in conclusory terms, that
preparation of his case was hampered, other than by the obvious loss of the
alibi defense itself, in which he had no vested right. Id. at 403-04, 566
A.2d at 973.

¶ 52. Like the defendant in Dunbar, defendant here was plainly on
notice of the nature of the allegations against him, and the State's case
against him was fully exposed. Defendant had ample opportunity to discover
any information brought into question by Z.S.'s deposition testimony. In
fact, the record reflects that defendant was provided with the VCIN logs
before trial. Defendant does not identify any specific evidence that he
could have brought forward had the information been amended earlier.
Moreover, the record shows that defendant testified in great detail about
his interaction with Z.S. at VCIN. Defendant fails to show that the
amendment hampered his ability to present his defense. We also reject
defendant's claim that he was prejudiced because the amendment made the
charges against him appear more similar. As the State notes, defendant is
not entitled to "factually disparate" charges. Defendant fails to
substantiate his claims of prejudice, and we therefore reject this claim of
error.

¶ 53. We turn last to defendant's assertion that the trial court
erred in denying his request to inquire into Z.S.'s sexual history during
trial. The record indicates that defendant moved to allow such questioning
on the third day of trial. Defendant asserted that he was entitled to
rebut the State's suggestion, ostensibly made in its opening argument, that
Z.S. "had no previous history of sexual abuse." Defendant maintained that
there was a possibility that Z.S. had been abused in the past based on the
deposition testimony of Z.S.'s caretaker. Defendant requested permission
to question Trooper Brown and Z.S.'s caretaker about this possibility, and
he sought to argue that Z.S. acted out with his respite care provider
because the DCF interview caused memories of past abuse to resurface.

¶ 54. The trial court denied defendant's request. It explained that
there was no definite evidence that Z.S. had been abused in the past, and
it noted that if any evidence did exist on this issue, it would not be in
the State's possession, but rather in the possession of DCF and subject to
confidentiality requirements. The court also noted that defendant had been
aware of this issue during discovery and he had not pursued it at that
time.

¶ 55. Even assuming that such evidence existed, the court
explained, it was inadmissible because it did not fall within any of the
exceptions set forth in the rape shield statute, 13 V.S.A. § 3255.
Moreover, even if the evidence were admissible under § 3255, the court
explained, it would then need to determine under § 3255(a)(3) that the
evidence bore on Z.S.'s credibility or was material to a fact at issue, and
that its probative value outweighed its private character. The court found
that, in this case, there had been no evidence or argument that Z.S. had
any source of prior knowledge about sexual matters, that he had a prior
sexual injury, or that there had been prior false allegations of sexual
abuse. The court found no support for defendant's assertion that the State
had suggested in its opening argument that Z.S. was "sexually innocent," or
that the State had intentionally tried to mislead the court, parties, or
the jury, about the evidence or the State's theory of the case.

¶ 56. The court explained that the parties were now three days into
trial, and looking at the balancing, whatever evidence there might be on
this issue was speculative, unknown, and confusing. It concluded that to
allow this line of questioning based on one fairly ambiguous statement in
the State's opening would go beyond what was needed in the case, and it
would be confusing and an exorbitant waste of time. The court therefore
denied the motion.

¶ 57. Defendant argues that the court erred in denying his request.
He does not assert that any evidence of prior abuse was admissible under
the rape shield statute but rather argues that the evidence should have
been admitted despite this statute because it was relevant and probative.
According to defendant, he was entitled to raise this issue to challenge
the State's case, and by denying his request, the trial court denied him
his ability to confront the witnesses against him and prepare a defense.
Defendant maintains that had he been able to make this argument, the jury
would have had reason to doubt the State's case, and he would have been
acquitted.

¶ 58. We find no abuse of discretion. See State v. Lund, 164 Vt.
70, 72, 664 A.2d 253, 255 (1995) ("The trial court has discretion in
determining whether evidence is relevant and admissible."). As reflected
above, the trial court identified numerous compelling grounds for rejecting
defendant's proposed inquiry, including that there was no specific evidence
that Z.S. had been previously abused, defendant failed to pursue this issue
during discovery, and any inquiry on this topic would be confusing to the
jury and a waste of time. The court's decision in no way denied defendant
his ability to confront the witnesses against him, nor did it hamper
defendant's ability to prepare a defense. See id. ("[I]f the evidence is
not relevant or unduly prejudicial, it is inadmissible and the
Confrontation Clause may not be invoked to change that result."). The
evidence was speculative and irrelevant, and the court did not abuse its
discretion in excluding it. See id. at 72-73, 664 A.2d at 255 (reaching
similar conclusion where defendant's proposed cross-examination of young
victim about a prior sexual assault would have had little, if any,
probative value while causing great trauma to young victim and creating
risk of confusing the issues for the jury).

Affirmed.

FOR THE COURT:

_______________________________________
Associate Justice