Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-328

                                          JULY TERM, 2014

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 David Leo Edson                                       }    DOCKET NO. 350-3-12 Wmcr

                                                            Trial Judge: David T. Suntag

                          In the above-entitled cause, the Clerk will enter:

        Defendant was found guilty of two counts of aggravated sexual assault and one count of
lewd and lascivious conduct with a child, and received an aggregate sentence of twenty-five
years to life. In this automatic appeal, defendant argues that the trial court committed plain error
in admitting a recorded interview of the minor victim, and in allowing testimony related to
defendant’s prior acts of violence and substance abuse. We affirm.

        The charges were based on disclosures by minor A.C., born January 31, 1999, who told
her father that while she was living with her mother during the summer of 2009 when she was
ten years old, defendant had repeatedly sexually assaulted her. In 2011, when A.C. made the
disclosure, she was living with her father in Utah. Father reported the allegations to Utah social
services. Father also took A.C. to the hospital for a medical exam, which was performed by a
nurse. A.C. told the nurse that defendant had repeatedly raped her. Utah law enforcement
conducted an interview with A.C. at the request of Vermont police. The interview was video
recorded.

        At trial, A.C. testified that during the summer of 2009 she was living with her mother and
two brothers in a two-room apartment. She described her mother as being physically abusive
and using drugs.1 There were other adults living in the apartment, including defendant and his
girlfriend. A.C. slept on the floor in the bedroom where her brothers were sleeping. She stated
that defendant slept on the floor next to her and repeatedly sexually assaulted her by putting his
penis in her vagina. She was unable to describe the assaults in detail. She stated that her
brothers were in the room and her mother was in the apartment at the time. She testified that she
did not report the assaults at the time because defendant told her he would get in trouble and he
had prevented her mother from hitting her and her brothers. The recorded interview with Utah
police was admitted at trial.



         1
         In August 2009, the abuse of the children was reported to police, the children were
removed from the home and A.C. had no further contact with her mother.
         The State presented expert testimony from a forensic psychologist. He testified about
factors that can explain the delayed disclosure of sexual assault by children including the child’s
familiarity with the abuser, the child’s fear of what will happen if they tell, whether the child
comes from a dysfunctional, chaotic, and abusive family, the mother’s level of support, and the
child’s fear that disclosure will cause disruption of the family or harm to the abuser. He also
testified that some children are unable to report details of their abuse, and factors leading to this
are repeated abuse and the severity of the emotions involved.

       Three people who resided in the apartment that summer also testified: A.C.’s mother,
defendant’s girlfriend, and A.C.’s brother. None testified to witnessing the sexual assaults.
Defendant testified as well. Although he admitted to violent behavior and drug use, he denied
the sexual assaults. The jury found defendant guilty on all three counts, and the court sentenced
him to an effective sentence of twenty-five years to life. This automatic appeal followed.
V.R.A.P. 3(b)(2).

        Defendant’s first argument concerns the admission of A.C.’s prior recorded statement to
Utah police.2 Prior to trial, the State provided notice under Vermont Rule of Criminal Procedure
26 of its intent to offer A.C.’s out-of-court statements about the sexual assaults pursuant to
Vermont Rule of Evidence 804a. See V.R.Cr.P. 26(d) (requiring state in criminal action to
furnish written statement of evidence it intends to offer under V.R.E. 804a at least thirty days
prior to trial). Rule 804a states that an out-of-court statement by a person under twelve years of
age is not excluded by the hearsay rule in certain proceedings if the statement was “not taken in
preparation for a legal proceeding,” the child is available to testify, and “the time, content, and
circumstances of the statements provide substantial indicia of trustworthiness.” V.R.E. 804a(a).

        At a December 2012 status conference, the court mentioned the State’s 804a disclosure.
Through counsel, defendant stated that he had no objection to the 804a disclosures, and
stipulated that no hearing was necessary. Therefore, the court did not make specific findings on
the Rule 804a factors.

        On appeal, defendant argues that the court erred in not conducting this analysis sua
sponte, and that such failure was plain error insofar as the statement failed to meet the Rule 804a
criteria because it was taken in preparation for a legal proceeding and did not bear substantial
indicia of trustworthiness.

        We first address the issue of waiver. Without question, there was no preservation of the
argument raised on appeal since defendant failed to object both in response to the State’s pretrial
disclosure and at trial to admission of the statement to Utah police. See State v. Gomes, 162 Vt.
319, 330 (1994) (“The duty to exclude objectionable testimony rests squarely with defense
counsel, and without an objection, the defendant fails to preserve the issue for appeal.”). But in
this case defendant’s comments to the court went beyond simply failing to object. Defendant
agreed that A.C.’s recorded interview with Utah police was admissible and that no 804a hearing
was necessary. Thus, the court conducted no hearing on the issue and issued no findings on the
Rule 804a criteria. Further, defendant relied on the interview at trial to support his argument that
A.C.’s various accounts of the alleged assaults were nonspecific and not credible. Given

       2
           At trial, A.C.’s statements to her father, the examining nurse, and the Utah detective
were all admitted. The police interview was video recorded, and the recording was admitted at
trial without an objection. On appeal, defendant challenges only admission of the recorded
police interview. Therefore, we do not specifically address the other statements.
                                                  2
defendant’s agreement that no 804a hearing was necessary and his choice to rely on the
testimony at trial, defendant waived any objection to admission of the statement on appeal. See
State v. Spooner, 2010 VT 75, ¶ 19, 188 Vt. 356 (“By agreeing to admission of certain evidence,
a party waives his right to review of the trial court’s ruling on appeal.”).

        For this reason, there is also no merit to defendant’s argument that the court was required
to issue Rule 804a findings despite defendant’s agreement that the statement was admissible.
The trial court relied on defendant’s statement that he did not object to the admission of the
interview. As a result, the court admitted the interview without a hearing and, thus, without any
findings on the Rule 804a factors. Having expressly agreed to that procedure below, defendant
has waived any objection to the lack of findings on appeal. There is good reason to apply the
waiver rule in this instance. Ordinarily, the trial court has discretion in admitting or excluding
evidence under Rule 804a, and this Court’s review is limited to reviewing for an abuse of
discretion. State v. Willis, 2006 VT 128, ¶ 20, 181 Vt. 170. Because defendant conceded that a
hearing and findings were not necessary, none were given, and, consequently, review of those
findings in this Court is neither possible nor required.

       In any event, we conclude that any failure to engage in a Rule 804a analysis did not
amount to plain error.3 Plain error occurs in only “rare and extraordinary cases where the error is
both obvious and strikes at the very heart of the defendant’s constitutional rights or results in a
miscarriage of justice.” State v. Campbell, 146 Vt. 25, 27 (1985). No obvious error occurred in
admitting the statement under Rule 804a because there was a sufficient basis to meet all of the
804a criteria, including the two specific criteria now challenged by defendant—that the
statements were not taken in preparation for a legal proceeding and that the statements provide
substantial indicia of trustworthiness.4

        As to the purpose of the interview, Rule 804a allows admission of a statement “not taken
in preparation for a legal proceeding.” V.R.E. 804a(a)(2). The test is “whether an objective
view of the totality of the circumstances indicates that the statements were gathered primarily for
reasons other than preparation for a legal proceeding.” State v. Blackburn, 162 Vt. 21, 25
(1993). Interviews conducted while a matter is in an investigatory stage do not necessarily
trigger the commencement of legal proceedings. Id. Here, the recorded interview was done after
disclosure by A.C., but at the beginning stages of the investigation, and was the first interview
conducted by law enforcement. Therefore, there were sufficient facts to support a finding that
A.C.’s statement was taken for investigative purposes rather than for future legal proceedings.
See State v. Reid, 2012 VT 65, ¶¶ 21-35, 192 Vt. 356 (affirming admission of child’s out-of-
court statements as investigatory).

       In addition, there were sufficient facts to demonstrate that the interview showed indicia of
trustworthiness. Under Rule 804a, “the time, content, and circumstances of the statements” must

       3
           We note that, in reviewing an automatic appeal, this Court must “review the record in
the interests of justice.” V.R.A.P. 3(b)(2)(D). This Court has not considered what type of review
is mandated by this standard, and in particular, whether the limited standard caused by
nonpreservation applies. We do not address the question here because, even if plain error
applies, the standard was not met in this case.
       4
           Because this Court is limited to reviewing the admission of a statement under Rule
804a for abuse of discretion, Willis, 2006 VT 128, ¶ 20, as long as there was sufficient evidence
for a court to have found that the statement met the criteria, there was no obvious error.
                                                 3
provide “substantial indicia of trustworthiness.” V.R.E. 804a(a)(4). Defendant claims that the
standard was not met here because proper interview protocol was not followed, the questions
were direct rather than leading, and A.C. exhibited withdrawn body language. Even accepting
that A.C. was reluctant to speak to the interviewer and the best interview practices were not
followed, there were other indicia of trustworthiness that could support admission. The
statements made to the Utah detective were in keeping with A.C.’s initial disclosure to her father,
and A.C. consistently described both the abusive acts and defendant as the perpetrator. See
Willis, 2006 VT 128, ¶ 20 (affirming court’s finding that statement was trustworthy based on
consistent description of abuse and perpetrator even if best interview practices were not
followed). Therefore, there was no obvious error in admitting the statement.

        Defendant next argues that it was plain error to admit evidence of his prior bad acts.
Prior to trial, the State notified the defense of its intent to offer evidence of defendant’s violent
conduct pursuant to Rule of Criminal Procedure 26. As set forth above, the evidence at trial
included testimony from A.C.’s mother, defendant’s girlfriend, and A.C.’s brother, all of whom
resided in the apartment with A.C. during the summer of 2009. At trial, A.C. and these other
three witnesses all described acts of violence committed by defendant and testified to
defendant’s use of illegal drugs. None of the other individuals testified that they witnessed the
sexual assaults. Defendant did not object to admission of these statements either in response to
the State’s pretrial disclosure or when the testimony was given at trial. On appeal, he claims that
the court committed plain error in allowing the testimony because it was not relevant, and, even
if relevant, was impermissible character evidence.

        There are no grounds for reversal. Defendant purposefully chose not to challenge
admission of evidence regarding his past violent acts and drug abuse at trial as part of his trial
strategy. In fact, defendant on direct examination testified extensively about his prior
convictions, his prior violent acts, and his prior drug use. Defendant’s apparent strategy was to
honestly admit to illegal behavior so as to give credence to his denials of sexually assaulting
A.C. Given defendant’s conscious choice not to challenge admission of this evidence and to in
fact rely on it as part of his trial strategy, he has waived any plain-error objection. State v.
Leroux, 2008 VT 104, ¶ 15, 184 Vt. 396 (“We will not find plain error based on a deliberate
tactical decision by counsel.”).

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice

                                                 _______________________________________
                                                 Geoffrey W. Crawford, Associate Justice




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