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