State v. Jones
STATE_V_JONES.92-521; 160 Vt. 440; 631 A.2d 840
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
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No. 92-521
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit
Leo Jones May Term, 1993
Matthew I. Katz, J.
Scot Kline, Chittenden County State's Attorney, and Pamela Hall Johnson,
Deputy State's Attorney, Burlington, for plaintiff-appellee
John F. Evers and Kevin E. Brown of Langrock Sperry & Wool, Middlebury, for
defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
GIBSON, J. Defendant was convicted by jury of two counts of sexual
assault in violation of 13 V.S.A. { 3252(a)(3) and two counts of lewd and
lascivious conduct in violation of 13 V.S.A. { 2602. All four counts arose
from allegations that defendant had sexually abused his stepdaughter. On
appeal, he claims the court erred (1) in denying his motion for acquittal on
the two charges of sexual assault because the State failed to prove the
requisite sexual act, (2) in denying his motion for a new trial because
unfairly prejudicial physical evidence was improperly admitted and three
witnesses were improperly permitted to testify, and (3) in denying his
motions for mistrial because the State improperly cross-examined defendant
concerning uncharged sexual misconduct and the child's mother improperly
revealed to the jury that she had obtained a relief-from-abuse order against
defendant. We affirm.
I.
Defendant first argues that he is entitled to a judgment of acquittal
on both counts of sexual assault because the State failed to produce clear,
precise, and explicit evidence of the sexual acts charged. The informations
charge defendant with engaging in unlawful sexual conduct with a person
under the age of sixteen, consisting of contact between the penis and the
vulva. See 13 V.S.A. { 3251(1) (defining sexual act). Defendant relies on
State v. Prime, 137 Vt. 340, 342, 403 A.2d 270, 271 (1979), in which we held
that a judgment of acquittal should have been granted because the "record
[did] not establish contact, nor [were] we convinced that the vagueness
[was] due to the defendant's underdeveloped vocabulary." Id. Defendant
contends that, as in Prime, the complainant's testimony in the instant case
was insufficient to establish the element of contact.
In reviewing a motion for judgment of acquittal, the issue is whether
the evidence, viewed in the light most favorable to the State, fairly and
reasonably tends to show the defendant guilty beyond a reasonable doubt.
State v. French, 152 Vt. 72, 81-82, 564 A.2d 1058, 1063 (1989). "[G]uilt in
a criminal case may be proved by circumstantial evidence alone, if it is
proper and sufficient in itself." State v. Messier, 146 Vt. 145, 150, 499
A.2d 32, 37 (1985). "Contact" requires "'mere touching, however slight.'"
Id. (quoting State v. Bourn, 139 Vt. 14, 16-17, 421 A.2d 1281, 1282 (1980)).
In Messier, we upheld a conviction of two counts of sexual assault although
there was no direct evidence of the sexual acts charged. A witness
recounted that the defendant had undressed the child and partially undressed
himself, but the bodies then obscured the witness's observations. We held
that, given the relative positions of the bodies, as described by the
witness, the State had satisfied its burden. Id. at 151, 499 A.2d at 37.
Here, the child was thirteen years old when she testified. She told
the jury that defendant took off her clothes and then undressed himself.
She stated that he touched her breasts and her vagina with his hands and his
penis and that he was lying on top of her. She then testified:
Q: What was he trying to do with his penis?
A: Put it inside me.
. . . .
Q: Do you remember how it felt when he was trying to
put his penis inside of you?
A: Hurt.
Regarding the second incident, the child's testimony was similar. This
evidence was sufficient for the jury to find the element of contact beyond a
reasonable doubt.
II.
Defendant argues next that he is entitled to a new trial because the
trial court improperly admitted several items of physical evidence that
unfairly prejudiced him. A motion for a new trial is a matter within the
discretion of the trial court, and therefore, the court's ruling will be
upheld unless discretion was abused or withheld. State v. Miller, 151 Vt.
337, 339, 560 A.2d 376, 377 (1989).
First, defendant claims that the court erred by admitting a love poem
containing sexual connotations allegedly written by defendant to the child.
The poem was admitted to show that defendant's motive in committing the
charged acts was to satisfy his sexual desires for her. At trial, defendant
contended that he wrote the poem to the child's mother, although it express-
ly stated the child's name. The parties disputed whether the poem was
written nine months prior to the first act charged, or three months after
the last act charged. Defendant also claims that the court improperly
admitted a birthday card from defendant to the child and a cassette tape of
songs that defendant recorded and gave to the child along with a copy he
made of the lyrics. This evidence was also allowed as evidence of defend-
ant's motive in committing the charged act. The parties agree that defend-
ant gave the card, the tape and the lyrics to the child two to three months
after the last act charged.
On appeal, defendant maintains that the poem was not probative of his
motive because it was too remote in time -- nine months prior -- or because
it was post-incident -- three months after. He argues that the card and the
tape cannot be relevant to show motive because they were post-incident acts.
According to defendant, the physical evidence was irrelevant and unfairly
prejudicial and thus admitted in violation of V.R.E. 404(b), 403, and 402.
Evidence of other acts by the defendant are not admissible to prove
character or that the defendant "acted in conformity therewith." V.R.E.
404(b). Such evidence is admissible, however, for other purposes, such as
to prove motive, intent or plan. Id. Even where the evidence is offered
for a valid purpose, it "may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice." V.R.E. 403.
The court must exercise discretion in weighing the evidence under V.R.E.
403. State v. Cardinal, 155 Vt. 411, 414, 584 A.2d 1152, 1154 (1990).
Defendant cites no authority to support his contention that an act
committed nine months prior to the incident charged is too remote to be
probative of his motive. We have previously upheld the admission of prior
acts that occurred over a period of four years to establish a modus
operandi, Id. at 414, 584 A.2d at 1154, but also have concluded that
evidence of sexual misconduct that occurred ten and twelve years prior to
the act charged was too remote in time to prove a pattern, plan, or modus
operandi. State v. Hurley, 150 Vt. 165, 169, 552 A.2d 382, 385 (1988). In
the instant case, the State's evidence indicated that defendant wrote the
poem in November 1988, and the four incidents allegedly occurred between the
summer of 1989 and January 1990. Given the continuing nature of the sexual
molestations, we cannot conclude that the court abused its discretion by
ruling that the poem was probative of defendant's motive for the charged
acts, despite the interval of several months.
Defendant provides no authority to support his argument that post-
incident acts cannot be probative of his motive in committing the charged
acts. We reject his contention that subsequent acts are inadmissible per
se. See United States v. Ramirez, 894 F.2d 565, 569 (2d Cir. 1990)
(declining to adopt per se rule that subsequent similar-act evidence lacks
relevancy); United States v. Hurley, 755 F.2d 788, 790 (11th Cir. 1985)
(subsequent acts may be used to show intent under Fed. R. Evid. 404(b));
State v. Tolman, 828 P.2d 1304, 1310 (Idaho 1992) (rejecting rule that
evidence of subsequent misconduct is per se inadmissible). In the context
of this case, the gifts, poems and songs that defendant gave to the child
over a period of a year and a half were probative of his motive in com-
mitting the charged acts, whether pre- or post-incident. They were properly
admitted under V.R.E. 404(b) because they fairly indicated defendant's
continuing sexual interest in the child. Moreover, the evidence was
relevant and thus met the requirement of V.R.E. 402.
We also conclude that the court did not abuse its discretion by ruling
that the physical evidence was admissible under V.R.E. 403. To be excluded
under V.R.E. 403, the probative value of the evidence must be substantially
outweighed by unfair prejudice. V.R.E. 403; see State v. Bruyette, ___ Vt.
___, ___, 604 A.2d 1270, 1274 (1992). "Evidence is unfairly prejudicial if
its primary purpose or effect is to appeal to a jury's sympathies" or to
provoke horror or a desire to punish. Bruyette, ___ Vt. at ___, 604 A.2d at
1274. We find none of these circumstances in this case. The gifts, poems
and songs were not presented to raise the jury's emotions, nor were they
likely to incense the jury to punish defendant for acts other than those
charged. Cf. State v. McCarthy, 156 Vt. 148, 155, 589 A.2d 869, 873 (1991)
(grave danger of prejudice from evidence of other crimes because jury may
want to prevent defendant from escaping punishment for those crimes). The
physical evidence was probative of defendant's motive and therefore
prejudicial to defendant but not unfairly so. Id. at 158, 589 A.2d at 875
(evidence must be excluded only if unfairly prejudicial to defendant).
III.
Defendant next argues that the trial court erred in denying his motion
for a new trial because it improperly allowed three witnesses to testify.
First, defendant objected to the State calling April Wescott as a witness in
its case-in-chief because the State failed to disclose its intent to call
her as a witness until the day of the jury drawing, the day before trial
began. The court allowed Ms. Wescott to testify that, during one summer,
the complainant had told her that defendant "had tried to do something to
her while fishing." On cross-examination, the witness admitted that she
could not remember if her conversation with the complainant had occurred in
the summer of 1989 or 1990.
V.R.Cr.P. 16(a)(1) imposes a duty on the prosecutor to disclose to the
"defendant's attorney as soon as possible the names and addresses of all
witnesses then known to him." It also requires the prosecution to disclose
"within a reasonable time" the witnesses it intends to call at trial.
V.R.Cr.P. 16(a)(2)(E). To establish reversible error under V.R.Cr.P. 16, a
defendant must show both a violation of the rule and resulting prejudice.
See State v. Sird, 148 Vt. 35, 39, 528 A.2d 1114, 1116 (1987). Defendant
has shown neither, here.
At trial, defendant objected to the State calling Ms. Wescott because
of the late disclosure but never alleged prosecutorial misconduct. On
appeal, he claims that the substance of Ms. Wescott's testimony was known to
the State approximately eighteen months before trial, that he objected to
her testifying due to the late disclosure, and that the court allowed her to
testify in violation of V.R.Cr.P. 16.
The record indicates that, in reviewing the case file on the weekend
prior to trial, the State noticed that the child's mother mentioned that the
child had spoken to Ms. Wescott about the initial incident. This
information was retrieved from an eight-page handwritten explanation of
corrections the mother had made to her deposition transcript, a copy of
which had been provided to defense counsel. On the day of the jury drawing,
the State told defense counsel that it was considering calling her as a
witness but had not spoken to her yet. There is no evidence that the State
deliberately withheld the information; nor has defendant alleged that the
prosecutor acted in bad faith. Although the State may have been negligent
in failing to take note and disclose this witness earlier, the State did
make its disclosure prior to the commencement of trial and in time for
defendant to depose the witness. We cannot find on this record that
defendant has established a violation of V.R.Cr.P. 16.
Defendant has also failed to show prejudice. He argues that Ms.
Wescott corroborated the complainant's story regarding the first charge of
sexual assault that allegedly occurred while she and defendant were fishing
at "Muddy Brook," and undermined the defense theory that the child fabri-
cated all four charges on the day of the last act charged because she was
angry that defendant was disciplining her. Defendant maintains that, had
the witness been disclosed to him earlier, he would have prepared the
defense differently, and could have sought evidence to challenge the
witness' credibility.
But defendant was able to depose the witness prior to her testifying,
and he demonstrated through cross-examination that she could not remember
when the conversation with the complainant took place. Cf. Sird, 148 Vt. at
39-40, 528 A.2d at 1116 (prosecutor's failure to disclose did not prevent
defense from demonstrating on cross-examination that witness could not
remember details of evening in question). He has made no showing that more
time would have affected his cross-examination, nor that preparing the
defense "differently" would have had any effect on the outcome. See Howe,
136 Vt. at 67, 386 A.2d at 1133 (review of record revealed no conclusive
showing that more time would have affected cross-examination of witness).
Under all of the circumstances herein, we find no abuse of discretion in
allowing the witness to testify.
Defendant also argues that the court erred by allowing the State to
call Carol Martin as a rebuttal witness for two reasons: (1) the State had
never informed defendant that Ms. Martin was a witness, and (2) Ms. Martin's
testimony was not proper rebuttal evidence. In the State's case-in-chief,
the child's mother testified that she had discovered the poem defendant
wrote to the child in November 1988 and that she called her cousin, Ms.
Martin, soon after to discuss it. Defendant then testified that he wrote
the poem to the child's mother in March or April 1990. The State called Ms.
Martin to testify on rebuttal that the child's mother had called her in the
late fall of 1988 and read the poem to her.
Defendant first contends that an undisclosed witness may not testify on
rebuttal unless the relevance of the testimony is not apparent until the
opposing side has presented its case. Because the State knew of Ms. Martin
and the relevance of her testimony prior to presentation of the defense,
there was no reason to allow the State to present her as an undisclosed
witness on rebuttal. See Radio Distributing Co. v. National Bank and Trust
Co., 489 N.E.2d 642, 648 (Ind. Ct. App. 1986) (no abuse of discretion to
allow rebuttal through undisclosed witness if "relevance and existence of
rebuttal evidence is not known until the other side has presented its
case"). We do not address this issue because it was not raised below. See
State v. Gleason, 154 Vt. 205, 215, 576 A.2d 1246, 1252 (1990).
Defendant also objected to Ms. Martin testifying on the grounds that
her testimony was not proper rebuttal because it did not rebut evidence
supporting a claim first raised by defendant. See State v. Callahan, 155
Vt. 571, 575, 587 A.2d 970, 973 (1991) (State has right to rebut defendant's
evidence in support of claim if claim was first introduced by defendant).
"The trial court has wide discretion in matters of trial conduct and evi-
dentiary rulings, including the admission of rebuttal testimony." State v.
Bessette, 148 Vt. 17, 19, 530 A.2d 549, 550 (1987); cf. Nelson v. Percy, 149
Vt. 168, 170, 540 A.2d 1035, 1037 (1988) (no abuse of discretion in
excluding evidence offered in rebuttal that was repetitive and had been
covered in plaintiff's testimony); Bessette, 148 Vt. at 20, 530 A.2d at 550
(no abuse of discretion denying rebuttal witness where testimony was
cumulative, was not offered to rebut new evidence, and where there was no
indication why it could not have been presented in case-in-chief). Although
the mother testified that she discovered the poem in November 1988,
defendant testified that he wrote the poem in March 1990. Under these
circumstances, there was no abuse of discretion in allowing Ms. Martin to
testify to counter defendant's testimony regarding the time when the poem
was written. Cf. Callahan, 155 Vt. at 577, 587 A.2d at 974 (no abuse of
discretion to admit evidence relevant to rebut theory aggressively advanced
by defendant, particularly when it was similar in effect to other evidence
received without objection).
Defendant also objected to the expert medical testimony, claiming that
the State failed to lay an adequate foundation for the doctor's opinion.
Rulings on the adequacy of the foundation of an expert opinion are within
the trial court's discretion. Sharp v. Transportation Bd., 141 Vt. 480,
486, 451 A.2d 1074, 1076 (1982). The testimony to which defendant objected
was a response to a hypothetical question. The foundation for a
hypothetical question is sufficient if the facts stated are within the
tendency of the evidence. Vermont Food Industries v. Ralston Purina Co.,
514 F.2d 456, 463 (2d Cir. 1975). In the instant case, the facts in the
hypothetical were in evidence; thus, there was no abuse of discretion in
admitting the expert's response.
Defendant also maintains that the expert's testimony was speculative
and unreliable because she could not determine with a reasonable degree of
certainty that the injuries to the child were caused by penetration by a
penis. Defendant misunderstands the purpose of the expert's testimony. The
State called Dr. Susan Smith, in part, to render an opinion on whether the
injuries to the child's genitalia could have been caused by a fall on the
bathtub, as defendant contended, or whether the injury was caused by pene-
tration. The expert was not required to render an opinion on whether the
child had been sexually abused or on what was used to penetrate the child.
We find no error in the admission of the testimony.
IV.
Defendant contends that the trial court erred by denying his motions
for mistrial. The trial court has discretion in ruling on a motion for
mistrial, but should not grant the motion unless the moving party
establishes prejudice. State v. Roberts, 154 Vt. 59, 73, 574 A.2d 1248,
1255 (1990). The court's ruling will be upheld on appeal "unless the
court's discretion was either totally withheld or exercised on grounds
clearly untenable or unreasonable." Id.
Defendant first argues that the court should have declared a mistrial
because the State improperly asked him on cross-examination whether he told
the child and her sister that their cousin had been sexually molested so
that he could obtain an opportunity to touch them. The State then asked
defendant if he denied touching the sister's breasts to show her how the
abuse had occurred. Defendant objected to these questions and the court
gave the jury a curative instruction. At a bench conference, the State made
an offer of proof, and defendant requested a mistrial on the ground that the
State had improperly referred to a prior bad act with another victim. The
court took the motion under advisement and later denied it. On appeal,
defendant argues that no curative statement could have removed the
prejudicial effect of the State's question, which implied defendant had
molested another child.
Defendant relies on State v. McCarthy, 156 Vt. at 154-55, 589 A.2d at
873, in which we ruled that the admission of "extensive details" of
defendant's uncharged sexual misconduct with another child amounted to plain
error. In McCarthy, the prosecutor cross-examined defendant's character
witnesses by questioning them about the details of alleged prior abuse. In
cross-examining a character witness, inquiry into specific instances of
conduct is permissible, see V.R.E. 405(a), but only to determine whether the
witness has heard about the instance, and if so, whether it affected the
witness's opinion of the defendant's character. McCarthy, 156 Vt. at 153,
589 A.2d at 872. The evidence is admissible only to impeach the testimony
of the character witness, not to show that defendant has a disposition to
engage in the type of misconduct for which he is on trial. Id. We
concluded that the court erred in allowing the prosecutor to put details of
the abuse before the jury merely to show that defendant had previously
engaged in sexual misconduct. Id. at 154, 589 A.2d at 873.
The instant case is distinguishable from McCarthy because (1) the
prosecutor did not attempt to elicit extensive details of the incident, (2)
the court gave a limiting instruction immediately upon defendant's
objection, (3) and the question was asked in an attempt to impeach defend-
ant's version of the story. We conclude that defendant has not shown
prejudice and that the court did not abuse its discretion by denying this
motion for mistrial.
Defendant also claims that the trial court erred by denying a motion
for mistrial when the child's mother testified that she had obtained a
relief-from-abuse order against defendant. On direct examination, the State
inquired:
Q. During this time period, did you have any contact
with [defendant] while he was in New York?
A. Um, in court -- I had a restraining order on him and
when we went to court --
Defense counsel objected at this point, and the court gave a curative
instruction. Subsequently, defense counsel requested a mistrial on the
ground that the prejudicial impact of the testimony could not be cured by an
instruction. The court denied the motion.
"When a witness gives an unresponsive answer, the appropriate remedy
lies within the discretion of the trial judge." Roberts, 154 Vt. at 73,
574 A.2d at 1255. The record shows no intentional wrongdoing by the State,
nor any prejudice that was not cured by the court's instruction. Id. at 74,
574 A.2d at 1255 (prompt cautionary instruction cured any prejudice
resulting from nonresponsive answer). We therefore find no abuse in denying
defendant's motion for a mistrial.
Affirmed.
FOR THE COURT:
______________________________
Associate Justice
