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Vigna v. State

Court of Special Appeals of Maryland

July 31, 2019


          Circuit Court for Montgomery County No. 130781

          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 desk, and every time he talked, I felt his finger on my crotch. And I remember this so well, even though it was so many years ago, because I felt sexually aroused when that happened. I felt like that tingly sensation, and that's when I knew something wasn't right.

         L.D. described "a routine" for Mr. Vigna's class, in which she "ha[d] to give him a kiss on the cheek every single day before we left to go ride our bus." She also said that on one occasion, Mr. Vigna instructed her to change her clothes in a closet in his classroom with the door ajar and that she felt very uncomfortable.

         All five victims testified at trial, as did several of Mr. Vigna's former colleagues, including Ms. Sobieralski, Ms. Grey, and Dr. Brunson. Mr. Vigna also testified in his own defense, and he denied categorically that he ever touched a student for his sexual gratification. He testified that touching children inappropriately was "simply against the fiber of [him]." He did not deny that he often hugged children, had them sit on his lap, kissed them, and told them that he loved them:

MR. VIGNA: I told all of my students that I loved them. I believe that you had to love them to lead them and if they knew that then they would follow you to new heights academically and socially.
MR. VIGNA'S COUNSEL: There has been testimony that on occasion you kissed a student on the forehead or on the top of the head or a student kissed you on the cheek. Did that ever happen?
MR. VIGNA: Yes, I would go back and blame that on my Italian family.
MR. VIGNA'S COUNSEL: And did any of those incidents about which we have just been speaking did that involve any attempt to sexually exploit any of the students in your class?
MR. VIGNA: Absolutely not.

         Mr. Vigna attributed much of his behavior to growing up in a large Italian family that emphasized physical affection. He said he viewed his students as his family and would not want to carry on teaching if he could not show them love and physical affection. Mr. Vigna also acknowledged that he had failed to comply with his agreement not to have physical contact with his students, and stated repeatedly that the students initiated[3] the hugs and lap-sitting. "[T]hey are little kids," he explained, "[s]o you can try and tell them not to sit on your lap but . . . they are going to come up and hop on your knee whether you want them to or not." He attributed any contact that could have been interpreted as sexual to accidental touching in the daily classroom scuffle.

         The jury convicted Mr. Vigna of nine of the fourteen counts charged. He later was sentenced to eighty years in prison, all but forty-eight suspended. Additional facts will be provided below as needed.


         Mr. Vigna challenges three of the circuit court's evidentiary rulings on appeal. He contends first that the trial court erred when it excluded, under Maryland Rule 5-404(a)(2)(A), evidence of his character, specifically his character for interacting appropriately with children. Second, he argues that his 2008 and 2013 reprimands for inappropriate physical contact with his students were improperly admitted as prior bad acts evidence under Maryland Rule 5-404(b). Third, he argues that the trial court improperly admitted A.C.'s complaint to Ms. Sobieralski under Maryland Rule 5-802.1(d). And he argues finally that the circuit court's decisions to admit his prior reprimands while excluding his proffered character evidence violated his right to a ...

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