State v. Ashley

STATE_V_ASHLEY.92-180; 160 Vt. 125; 623 A.2d 984


[Filed 12-Mar-1993]

 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.


                                 No. 92-180


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Franklin Circuit

 James E. Ashley                              November Term, 1992


 Edward J. Cashman, J.

 Jo-Ann L. Gross, Franklin County Deputy State's Attorney, St. Albans,
   for plaintiff-appellee

 Robert Paolini and Charles Martin of Martin & Paolini, P.C., Barre, for
   defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   Following a jury trial, defendant appeals from a
 conviction on two counts of sexual assault, 13 V.S.A. { 3252(a)(3), and
 raises four issues.  We consider only the issues related to the admission
 of "bad acts" evidence and the impeachment of defendant's credibility
 through the introduction of prior criminal convictions, and find error in
 the latter issue.  We reverse and remand.
      The information charged defendant with two counts of sexually
 assaulting the 13-year-old daughter of the woman with whom he had lived for
 the prior seven years.  The two incidents allegedly occurred between August
 1, 1991 and September 29, 1991 and involved oral sexual contact between
 defendant and complainant.  The case was tried in February of 1992 and
 resulted in a guilty verdict on both counts.
      The first issue relates to the State's "bad act" evidence, which showed
 that the sexual assaults had begun in 1985, when the complainant was seven
 years old, and continued until 1991.  The evidence described the similarity
 of most of the incidents, as well as defendant's instruction that the
 complainant not disclose the abuse.  Defendant argues that the evidence
 should have been excluded under V.R.E. 404(b) as propensity evidence.  We
 have held in similar cases that evidence of prior acts is admissible for
 non-propensity purposes.  See State v. Cardinal, 155 Vt. 411, 414, 584 A.2d 1152, 1154-55 (1990) (victim's state of mind in not disclosing the sexual
 abuse and defendant's modus operandi); State v. Parker, 149 Vt. 393, 399,
 545 A.2d 512, 516 (1988) (motive, plan and intent).  The State offered the
 evidence for such purposes here.
      The real issue is whether the probative value of the evidence is
 substantially outweighed by the danger of unfair prejudice.  See V.R.E. 403.
 Crucial concerns affecting the probative value of the evidence are the
 proximity in time of the prior acts and the crime charged, and the degree of
 similarity bewtween them.  See State v. Catsam, 148 Vt. 366, 382, 534 A.2d 184, 194 (1987).   Here, there was a continuous series of similar acts right
 up to the time of the incidents in question.  This provides a significant
 nexus between the acts for which defendant was charged and the prior acts
 disclosed by the evidence.  See id. at 381-82, 534 A.2d  at 194; State v.
 Johnson, ___ Vt. ___, ___, 612 A.2d 1114, 1118-19 (1992); cf. State v.
 Hurley, 150 Vt. at 169, 552 A.2d  at 385 (two instances ten and twelve years
 earlier too remote).  Thus, there was no error in allowing the "bad acts"
 evidence.
      Defendant also attacks the admission of this evidence because the court
 failed to specify which Rule 404(b) exception applied and failed to give a
 limiting instruction.  The purposes for admission were specified in the
 State's response to defendant's motion in limine and are apparent from our
 earlier cases; moreover, the rule does not require the court to specify the
 grounds for admission.  Defendant failed to request a limiting instruction
 or to object to the absence of one and has waived this issue.  See State v.
 Holcomb, 156 Vt. 251, 256, 590 A.2d 894, 896-97 (1991).
      Next, defendant contends that the trial court should not have allowed
 the State to impeach him by presenting his entire conviction record.  Prior
 to trial, the State gave notice that it intended to impeach defendant with
 his conviction record.  That record showed that he had been convicted of
 false token in 1978, forgery in 1980, burglary in 1988, possession of a
 regulated drug in 1988, and false pretenses in 1981 and 1990.  The false
 pretenses convictions involved four separate cases and thirteen counts.
 Thus, the State sought to place seventeen convictions before the jury to
 impeach defendant's credibility.  Defendant objected, and the court ruled
 that all but the regulated drug conviction could be used.  Defendant took
 the stand at trial, and the State brought out the sixteen convictions on
 cross-examination.
      V.R.E. 609 authorizes impeachment by evidence of conviction of certain
 types of crimes.  As amended in 1989, the rule requires that the crimes
 either be felonies or involve "untruthfulness or falsification,"  V.R.E.
 609(a)(1), (2), and that the convictions have occurred within the fifteen
 years immediately prior to trial.  V.R.E. 609(b).  It is undisputed that
 the sixteen convictions admitted in this case met these standards.
      A determination as to whether this evidence was properly allowed also
 requires balancing the probative value of the convictions regarding
 defendant's credibility against the prejudicial effect to the defendant.
 For offenses involving untruthfulness or falsification, the balance is
 stated as whether "the probative value of admitting this evidence is
 substantially outweighed by the danger of unfair prejudice."  V.R.E.
 609(a)(1).  For other felony convictions, the balance is set at whether "the
 probative value of this evidence substantially outweighs its prejudicial
 effect."  V.R.E. 609(a)(2).  The difference in approach based on the nature
 of the convictions reflects a determination that convictions involving
 untruthfulness or falsification, whether or not felonies, "are of the
 highest relevance in determining credibility."  Reporter's Notes to 1989
 Amendment to V.R.E. 609.  The distinction was added in 1989 and makes it
 easier to admit convictions based on untruthfulness or falsification and
 harder to admit other convictions.  Id.  The 1989 amendment also added a
 requirement that the court "articulate on the record the factors considered
 in making its determination."  V.R.E. 609(a).
      The factors to be considered have been developed in a series of
 decisions of this Court and were not changed by the 1989 amendment.  See
 Reporter's Notes to 1989 Amendment to V.R.E. 609.  The leading case is State
 v. Gardner, 139 Vt. 456, 433 A.2d 249 (1981), a pre-rule decision which
 first announced the balancing test.  It concluded that the most important
 factor was the nature of the case, requiring the court to "exercise its
 discretion most carefully" in criminal cases where the witness to be
 impeached is the defendant.  Id. at 460, 433 A.2d  at 251.  Also to be
 considered are (1) the nature of the crime for which the defendant was
 convicted, especially if it was similar to the crime for which the defendant
 is on trial; (2) the length of defendant's criminal record; (3) the length
 of time that has passed since the conviction; and (4) the relative
 importance of the defendant's testimony.  Id. at 460-61, 433 A.2d  at 251-52.
      We reaffirmed the Gardner factors most recently in State v. Goodrich,
 where we stressed that "impeachment by prior convictions is 'extremely
 prejudicial to a criminal defendant.'"  151 Vt. 367, 372, 564 A.2d 1346,
 1349 (1989)(quoting Gardner, 139 Vt. at 458, 433 A.2d at 250)); see also
 State v. Bushey, 142 Vt. 507, 510-11, 457 A.2d 279, 281 (1983) (use of
 former convictions practically deprives criminal defendant of presumption of
 innocence and inevitably prejudices the jury against defendant).  We also
 reiterated that failure to adequately consider each Gardner factor would be
 grounds for reversal.  Goodrich, 151 Vt. at 374-75, 564 A.2d  at 1350-51.
      Three factors are central to our holding here.  The first is the number
 of convictions that were admitted.  Gardner noted that an extensive
 recitation of convictions "is likely to be highly prejudicial."  139 Vt. at
 461, 433 A.2d  at 251-52.  Thus, the court should consider limiting the
 number of convictions to be used where defendant has a lengthy record.  Id.
 An extensive recitation of prior convictions was allowed here.
      The second factor is the age of the convictions.  As Gardner noted,
 older convictions are less relevant to defendant's credibility at trial.
 Id.  Three of the convictions were over ten years old in this case.  The
 burglary conviction, which did not involve untruthfulness or falsification,
 was over four years old.
      The third factor is the relative need of the defendant to testify and
 the State to impeach defendant with the convictions.  Gardner stressed that
 where defendant has no means of defense but his testimony, and will be
 deterred from testifying by the impeachment, the court may want to exclude
 the convictions.  Id.  The court should also consider whether the State has
 another means to impeach the defendant's credibility.  Id.  In later cases,
 we have concluded that when a criminal case comes down to a credibility
 contest between defendant and complainant, there is a greater need to allow
 the convictions to show all information bearing on credibility.  See State
 v. Boucher, 144 Vt. 276, 281, 478 A.2d 218, 221 (1984).
      Both sides claim that this factor favors their position.  Defendant
 points out that he had to testify to rebut the victim's testimony and that
 the force of the testimony was undermined by the admission of the con-
 victions.  The State argues that this case came down to a credibility
 contest between defendant and the victim, that there was no other
 opportunity to impeach defendant, and that there is a special need for this
 evidence in sexual assault cases.  Although the relative credibility of
 defendant and complainant were central to the case, the evidence of prior
 convictions greatly undermined defendant's testimony, while there was other
 evidence in support of the State's position, including an expert on the
 behavior of child sexual abuse victims.  A neighbor testified to viewing
 inappropriate behavior between defendant and the complainant, and a lab
 analysis showed evidence of semen on a bedspread, where complainant had
 testified that defendant ejaculated.  In light of all the evidence, we see
 no special reason to allow the conviction evidence.  Nor do we see any
 grounds for special rules for sexual assault cases.
      The trial court's ruling on this evidence was discretionary and must be
 upheld if there was a reasonable basis for it.  State v. Goodrich, 151 Vt.
 at 375, 564 A.2d  at 1351.  We cannot find a reasonable basis for the ruling
 in this case.  On balance, the Gardner factors pointed to exclusion of some
 of the convictions, especially some of the older convictions and the bur-
 glary conviction, which was of limited probative value.  The trial court did
 not engage in the complete analysis of the factors that our cases require.
 The court found that the crimes for which defendant was convicted were dis-
 similar from that for which defendant is charged, and that they occurred
 within fifteen years of the trial.  Its balancing analysis simply concluded
 that because the evidence was relevant "and credibility will be a large
 issue, the State should be entitled to use that."  There was no
 consideration of the age of the convictions as a balancing factor, the large
 number of convictions, or the limited probative value of the burglary
 conviction.  This is the kind of "short shrift" consideration of the Gardner
 criteria we have found inadequate in the past.  See id. at 375, 564 A.2d  at
 1350-51.
      In this Court, the State is candid in its view that defendant's
 convictions represent the "height of dishonesty" based on a "long history of
 misrepresentation, untruthfulness and manipulation."  If a jury accepts
 this view, the rest of defendant's testimony would be valueless, and he
 would have no realistic opportunity to confront the witnesses against him.
 It is exactly this danger that the court must avoid by excluding all or part
 of the conviction evidence.
      There is no likelihood that the other issues will recur, and we have
 not considered them.
      Reversed and remanded.



                                         FOR THE COURT:




                                         Associate Justice