Vigna v. State

241 Md.App. 704

213 A.3d 668

John VIGNA

v.STATE of Maryland

No. 1327, Sept. Term, 2017

Court of Special Appeals of Maryland.

Filed: July 31, 2019

Argued by: Justin Eisele (Mirriam Seddiq, Seddiq Law Firm, on the brief), Upper Marlboro, MD, for Appellant.

Argued by: Sarah P. Pritzlaff (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: Berger, Nazarian, Arthur, JJ.

Nazarian, J. John Vigna was a long-time teacher at Cloverly Elementary, a public school in Montgomery County. In 2016, several students reported that Mr. Vigna had touched them inappropriately in his classroom, dating back as early as the 2001-2002 school year. Under the guise of a warm and affectionate teaching style, Mr. Vigna allegedly hugged female students and held them in his lap as he fondled their bodies through their clothing. He was tried in the Circuit Court for Montgomery County and, on June 9, 2017, convicted of one count of Child Abuse, three counts of Sex Abuse of a Minor, and five counts of Sex Offense in the Third Degree.

Mr. Vigna raises primarily evidentiary issues on appeal. First , he argues that the circuit court improperly excluded testimony (he describes it as character evidence) that Mr. Vigna had a reputation in the community for interacting appropriately with children under his care. Second , he argues that the circuit court improperly admitted reprimands he had received in previous school years for interacting inappropriately with students in the classroom. Third , he contends that the circuit court improperly admitted a school counselor's hearsay testimony relaying one victim's reports of her sexual abuse. And finally , he argues that the circuit court's evidentiary rulings violated his right to a fair trial under the Sixth Amendment to the U.S. Constitution. We disagree and affirm in toto .

I. BACKGROUND

Mr. Vigna's career with the Montgomery County Public Schools ("MCPS") began in 1992 and ended when the investigation giving rise to this case led to his dismissal in 2016. During his time at MCPS, Mr. Vigna taught grades 3–5 at Cloverly Elementary and coached bocce and baseball at Paint Branch High School. He was widely adored as a teacher and a colleague. He maintained close relationships with his students long after they left his class, and his colleagues praised his teaching style and entrusted him to look after their own students when they were unable to do so.

Despite his positive reputation, some of Mr. Vigna's colleagues expressed concern about how he interacted with students. Jennifer Grey,¹ a fifth-grade teacher, testified that she had seen Mr. Vigna with students in his lap "[a] handful of times" and had spoken with him more than once about maintaining appropriate boundaries with students. Ms. Grey reported cautioning Mr. Vigna "especially as a male teacher ... [not to] be alone with female students one-on-one, and keep [his] distance." Ms. Grey testified that she did not believe there was anything sexual about Mr. Vigna's interactions with his students, but that it violated professional guidelines and the policies laid out in MCPS's pre-employment training.

In 2008, a fire marshal observed Mr. Vigna holding a child on his lap in his classroom. The fire marshal reported the incident to then-principal Melissa Brunson, who called Mr. Vigna into her office and gave him a verbal warning. Three months later, a building service worker saw Mr. Vigna with another child in his lap and was upset by what he saw. A loud disagreement ensued, and Mr. Vigna followed the service worker down the hall and "[tried] to explain that the child was upset and that [he] was trying to meet that child's need at that moment." The incident nonetheless was reported to Dr. Brunson, who this time gave Mr. Vigna an official written reprimand and a formal warning that he could be terminated if his behavior persisted. Despite the warning, Mr. Vigna acknowledged that he "continued to hug, to kiss, to have kids in [his] lap and to have that kind of contact with children" because "[t]hat was what [he] deemed [to be] an effective teaching style."

In 2013, MCPS conducted an investigation into Mr. Vigna's conduct in response to a parent complaint. This time, Mr. Vigna allegedly invited three "female students to sit on [his] lap, lift[ed] them in the air, and dance[d] with them during class." Mr. Vigna was placed on administrative leave for three weeks and received another written reprimand, this time from the Chief Operating Officer of MCPS. Mr. Vigna wrote a brief response promising to alter his behavior:

I am going to restrict my activities in the classroom to strictly teaching, counseling and advising students and will make every effort to not have any physical contact at all with my students.

In 2016, A.C.² became the first of several victims to report that Mr. Vigna sexually abused her. Mr. Vigna was A.C.'s third-grade teacher during the 2013-2014 school year. When she was in fifth grade, the school counselor, Heather Sobieralski, conducted a lesson in personal body safety for A.C.'s class. The lesson included information about various forms of abuse and how children should get help if they were mistreated. The lesson included a definition of sexual abuse: "When someone touches you or asks you to touch them on the private parts of the body (those parts covered by a bathing suit), other than to keep you clean and/or healthy." Both Ms. Sobieralski and A.C.'s fifth grade teacher, Ms. Grey, noted with concern that A.C.'s demeanor changed during the lesson. Although ordinarily an engaged classroom participant, A.C. became despondent during the body safety class; she slumped down in her chair and eventually laid her head on the desk. Later that day, when Ms. Grey and Ms. Sobieralski asked A.C. if she was okay, A.C. said "You know how we all love Mr. Vigna? Well, he touches us in ways that makes us feel uncomfortable."

A.C. reported that Mr. Vigna touches both her and her friend G.G. "on our butt, and [ ] makes us sit on his lap, and won't let us get up." In a later interview with a social worker, A.C. stated that Mr. Vigna's behavior had gone on for years. The first incident she could recall occurred during her second-grade year, and the most recent just a few days before the interview. She reiterated that Mr. Vigna touched her buttocks and made her sit on his lap. A.C. said that Mr. Vigna would pull her onto his lap by her hips and pull her back if she attempted to get up. She said that he rubbed her thighs with his hands and breathed steadily more and more heavily the longer she was held on his lap. When she was not on his lap, she said, his breathing was normal. A.C. also stated that when she was on Mr. Vigna's lap she could feel a "hard" part of his body, for which she did not have the vocabulary, "under her butt." When asked to locate the body part on an anatomical drawing, she circled the waistline.

Mr. Vigna ultimately was charged with sexual crimes against five of his former students. Each victim reported a similar pattern of behavior. All five victims were prepubescent girls at the time of the alleged incidents, and most testified to having felt that they had a special relationship with Mr. Vigna. Each child reported that Mr. Vigna touched their chests, buttocks, and genitals through their clothing. Most of the incidents took place with other students in the classroom and had been concealed by strategic timing and placement. For example, Mr. Vigna often sat a child on his lap at his desk while the rest of his students watched videos at the front of the classroom. He also touched students at chaotic times, such as the end of the day, as the children prepared for dismissal.

Another victim, G.G., reported that she and A.C. frequently went to say goodbye to Mr. Vigna at the end of the school day. G.G. described the same pattern that A.C. reported. G.G. approached Mr. Vigna to say goodbye and give him a hug while he was seated at his desk. Mr. Vigna then rubbed her buttocks in a circular motion with one hand during a "side hug." She also reported that Mr. Vigna rubbed and squeezed A.C.'s buttocks before they left his classroom.

Two other victims, A.S. and J.S., are sisters. A.S. was in Mr. Vigna's third-grade class and reported that Mr. Vigna touched her weekly, if not more often, in ways that made her uncomfortable. She reported that he called her to the back of the classroom during the school day and touched her chest, buttocks, and genitals over her clothing. He also placed his hands on her stomach under her clothing. A.S. said that Mr. Vigna kissed her forehead and told her that he loved her and that she was beautiful while he held her on his lap.

J.S. was in Mr. Vigna's reading class. She, too, reported that Mr. Vigna would call her to the back of the classroom and, while hugging her, rub her buttocks and genitals through her clothing. She stated that "[i]n class he would call me over to the back table, just me and him, and then he would make sure I sat right next to him, and then he would start hugging me. He would start touching my butt."

L.D. was an adult at the time of trial. She was Mr. Vigna's student in fourth grade and stated that she was "very close with him;" she remembered "having a bond with him that [she] didn't have with other teachers." L.D. contacted the police after she saw an article on Facebook describing others' allegations against Mr. Vigna. She reported that Mr. Vigna sexually abused her during the 2001-2002 school year, and she recounted events similar to those alleged by the younger victims:

[A]t the end of the day, while we're waiting for the buses, he would have me and my former classmate [ ], I would sit on one leg and ... she would sit on the other leg, but it wasn't like Santa Claus style. It was like horseback ride style. So, I remember like we would lean back, and his hands would be on our, ... like on our legs. And I remember one specific instance where he was talking to some boys across the

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