State v. Bruyette

Annotate this Case

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revisions before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.

                                 No. 90-098


 State of Vermont                             Supreme Court

      v.                                      On Appeal from
                                              District Court of Vermont,
 Joseph Bruyette                              Unit No. 1, Rutland Circuit

                                              September Term, 1991


 Paul F. Hudson, J.

 James P. Mongeon, Rutland County State's Attorney, Rutland, for plaintiff-
    appellee

 Robert Katims of Martin & Paolini, Barre, for defendant-appellant



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



      JOHNSON, J.  We decide today that, in a prosecution for sexual assault,
 evidence of a defendant's prior consensual sexual relations may be admitted,
 under V.R.E. 404(b), to show identity.
      Defendant was tried by a jury for sexual assault, pursuant to 13 V.S.A.
 { 3252(a)(1)(C), and for burglary, pursuant to 13 V.S.A. { 1201.  The
 evidence established that on April 21, 1987, at approximately 1:00 a.m.,
 defendant forcibly entered the victim's apartment, threatened her with a
 razor-knife, threatened her infant son who was sleeping in a nearby room,
 and repeatedly forced her to perform oral sex, engage in sexual intercourse,
 and perform various degrading acts more particularly described below.
      Although the victim was blindfolded throughout much of the ordeal, she
 provided the police with details that caused the investigation to focus on
 defendant.  Later, defendant's  girlfriend, who had read about the incident
 in the newspaper, provided the police with additional incriminating
 evidence.  On April 27, the police obtained a search warrant to monitor and
 tape-record conversations between defendant and his  girlfriend through a
 concealed transmitter.  During these conversations, defendant made
 statements that police considered sufficiently incriminating to justify his
 immediate arrest.
      Defendant was arraigned on April 28, 1991, before a district court
 judge, who found that probable cause supported the State's informations
 charging defendant with burglary, kidnapping, and sexual assault.  He pled
 not guilty to the charges.  Before trial, defendant moved to suppress the
 tape-recorded conversations and certain physical evidence; these motions
 were denied by the trial court.
      A central issue at trial was identity.  To prove identity, the State
 introduced evidence indicating that defendant's prior distinctive sexual
 conduct with his girlfriend matched the aberrant sexual conduct in which
 the victim was forced to engage.  Over objection, the girlfriend testified
 about specific sexual activities that she engaged in with defendant,
 specific words and phrases that he asked her to repeat, role-playing,
 bondage, illegal drug use during sex, and defendant's sexual fantasies about
 abducting a blonde woman, forcing her to use cocaine and to perform various
 sexual acts.  The evidence was graphic and very specific.  She testified:

              [Defendant] was very into control.  He liked to do
           role-playing, master-slave like.  He [would] be the
           master and I would be the slave . . . .  He would say
           things, he wanted me to talk dirty to him and when I
           wouldn't say the things that he thought I should say, he
           would tell me, repeat after me, tell me that you are my
           horny, little slut . . . .  He used to like to say he
           wanted me to be his lady on the street and his whore at
           home . . . .

      She also detailed specific sexual practices that she engaged in with
 defendant.  For example, she testified that defendant often used cocaine
 during sexual relations and would interrupt their sexual activity and leave
 to "get high."  He would grab her hair and manipulate her head during oral
 sex and tell her that if she did not "do this right . . . he was going to
 jam it so far down my throat that I would throw up and he would make me lick
 it up."  Defendant also threatened her with anal sex.
      The victim testified that her assailant repeatedly forced her to engage
 in oral sex and sexual intercourse.  He blindfolded her, tied her up, and
 threatened her with anal sex.  He also manipulated her head during oral sex
 by grabbing and pulling her hair.  When she gagged and vomited during oral
 sex, he forced her to lick up her vomit.  The victim was also forced "to
 say that I was his dirty slave and that he was my master . . . [and] that I
 was a nasty slut . . . [and] I would be his whore in the bedroom . . .  but
 when I was out in public I . . . would look and act like a lady."
      According to the victim, her assailant forced her to swallow cocaine,
 which she spit out.  He interrupted his assault on several occasions to "get
 high."  After several hours of repeated sexual activity, he left the
 apartment.  The victim was then able to report the incident to the police.
      The trial court held that the sexual conduct, statements, and
 fantasies described by defendant's girlfriend demonstrated a pattern that
 was "very close to the testimony of [the victim] as to what happened in her
 case . . . [one that is] so idiosyncratic that with reasonable probability
 it points to the identity of the assailant . . . [and] amounts to something
 like a signature."  Thus, the court admitted the testimony to show the
 assailant's identity and to show that he had planned to commit the offenses.
      Defendant alleges four errors below: (1) evidence of his prior
 consensual sexual activity with his girlfriend was erroneously admitted for
 the purpose of showing identity; (2) his motion to suppress his tape-
 recorded conversations with his girlfriend should have been granted; (3) his
 conviction for a third sexual assault should be reversed because he was not
 properly arraigned on the charge, and because the charge was not supported
 by probable cause; and (4) certain physical evidence was illegally seized.
                                     I.
                                     A.
      The first issue is whether evidence of defendant's prior consensual
 sexual conduct with his  girlfriend, which was strikingly similar to the
 conduct perpetrated on the victim, is relevant and admissible to show
 identity.  Defendant argues that this testimony was inadmissible under
 V.R.E. 404(b), that it was irrelevant, and that its prejudicial effect
 outweighed its probative value.
      V.R.E.  404(b) states:
           Evidence of other crimes, wrongs, or acts is not
           admissible to prove the character of a person in order
           to show that he acted in conformity therewith.  It may,
           however, be admissible for other purposes, such as proof
           of motive, opportunity, intent, preparation, plan, know-
           ledge, identity, or absence of mistake or accident.

      The rule operates to exclude evidence of prior acts that are similar to
 the charged crime, if the evidence is introduced for the purpose of showing
 a general propensity to commit the acts in question.  See State v. Parker,
 149 Vt. 393, 397, 545 A.2d 512, 515 (1988).  Particularly in jury trials,
 the dangers of prejudice and confusion outweigh the probative value of such
 evidence, if it is offered only for that purpose.  E. Cleary, McCormick on
 Evidence, { 190, at 557 (3rd ed. 1984).  Evidence of prior acts may be
 admitted, however, if it is relevant to some other legitimate issue in the
 case, such as identity, intent, preparation, plan, or knowledge.  State v.
 Cardinal, 155 Vt. 411, 414, 584 A.2d 1152, 1154 (1990).  Although relevant,
 the evidence will be excluded if its probative value is substantially
 outweighed by its prejudicial effect.  V.R.E. 403; Parker, 149 Vt. at 400,
 545 A.2d  at 516 (1981).
      When prior act evidence is offered to show identity, the test for
 relevance is demanding.  See State v. Hall, 40 Wash. App. 162, 165-66, 697 P.2d 597, 600 (1985).  The "pattern and characteristics" of the prior acts
 must be so distinctive, in effect, to constitute the defendant's signature.
 See id. (a prior sexual act may be admitted to show identity only if it is
 so similar that it constitutes the handiwork of the accused); E. Cleary,
 supra, { 190, at 560.  Although the prior acts of the accused and the
 charged acts do not have to be identical, they must possess common features
 that make it highly likely that the unknown perpetrator and the accused are
 the same person.  Whereas a few common features that are unique may be
 sufficient, a larger number of them, less remarkable, but taken together,
 may also have significant probative value.  United States v. Myers, 550 F.2d 1036, 1045 (5th Cir. 1977).
      Defendant argues that the stringent relevance standard for identity is
 not met in this case because the sexual acts described by his  girlfriend
 are not uncommon, and are described in books, magazines and films available
 to the general public.  Therefore, he contends, his prior sexual
 relationship with his girlfriend cannot be considered so idiosyncratic as to
 identify him as the perpetrator in the case at bar.
      Notwithstanding the stringency of the criteria for admissibility,
 evidence of prior similar crimes has been admitted to show identity in many
 rape and sexual assault cases.  For example, in State v. Shedrick, 59 Ohio
 St. 3d 146, 150-51, 572 N.E.2d 59, 64-65 (1991), evidence of a past rape was
 used to show the assailant's identity under Rule 404(b), (FN1) where the
 defendant attacked both victims in a similar way, turned each victim's pants
 inside out, and assaulted both victims vaginally and anally.  The court
 concluded that evidence of the defendant's prior rape of the first victim
 was sufficiently similar to be probative on the issue of identity.  Id. at
 151, 572 N.E.2d  at 65.  In State v. White, 101 N.C. App. 593, 595-601 401 S.E.2d 106, 107-10 (1991), evidence of a past rape was used to show
 identity under Rule 404(b) where both victims were held in the same manner,
 both were told to "shut up," and both were ordered to remove their clothing.
 When the victims refused, the defendant removed their clothing, and ordered
 both victims to "put it in".  These cases, and numerous others like them,(FN2)
 are necessarily fact-specific, but they provide guidance on the kind of
 prior sexual practices that have been admitted under Rule 404(b) against
 defendants accused of rape.  At the very least, the cases show that evidence
 of sexual acts that are well-known to the majority of adult members of
 society was admitted when it had a strong tendency to identify the
 defendants.
      Thus, that the sexual acts and practices detailed in the testimony here
 may be engaged in by others does not necessarily mandate the exclusion of
 the evidence under Rule 404(b).  Application of the rule focuses on the
 degree of similarity between the prior acts and the charged acts, not on
 whether the acts themselves are uncommon.  It is unlikely that the number of
 shared characteristics (FN3) between the ritualistic nature of defendant's sexual
 activity with his girlfriend, and that of defendant and the victim,
 occurred by chance.  When the sexual acts are taken together with the
 specific statements that the girlfriend and the victim were forced to
 repeat, and the defendant's frequent use of cocaine during the activity, the
 evidence strongly tended to show that defendant was the perpetrator.   We
 conclude that the evidence was highly probative on the identity issue, and
 that the relevance standard was satisfied.
      Defendant asserts, however, that his girlfriend's testimony could not
 be relevant because her sexual relationship with him was consensual, citing
 State v. Coe, 101 Wash. 2d 772, 684 P.2d 668 (1984).  In Coe, the
 defendant's  girlfriend testified that he liked to masturbate, and used
 certain vulgar terms while they were engaged in sexual relations.  The
 court held, however, that the perpetrator's words and actions with the
 victim, though similar to Coe's behavior with his girlfriend, were not so
 idiosyncratic as to establish identity under Rule 404(b).  Id. at 778, 684 P.2d  at 672.  The court then questioned, in dicta, whether evidence of an
 individual's behavior in a consensual sexual relationship could ever be
 relevant to demonstrate modus operandi in a prosecution for a violent,
 nonconsensual act.  Id.
      Only one other court has dealt with the admission of prior consensual
 sexual conduct under Rule 404(b) in a prosecution for sexual assault.  State
 v. Plaster, 424 N.W.2d 226, 227-31 (Iowa 1988).  There, in a trial for
 sexual assault on a different victim, a woman testified about injuries she
 received during prior consensual relations with the defendant.  The witness
 testified that the defendant had vigorously manipulated her vagina with his
 hand, causing her to bleed, and that despite her requests to stop, he
 continued the manipulation for some time.  The prosecution charged the
 defendant with committing virtually the same sexual acts on the victim.
 Even though consent was the issue, not identity, the Supreme Court of Iowa
 held that evidence of prior consensual sexual conduct with the  partner was
 properly admitted under Rule 404(b) because it tended "to show the same
 peculiar and characteristic behavior pattern manifested in the crime
 charged."  Id. at 230.
      In our view, when the issue is identity, the key to admissibility under
 { 404(b) is similarity, not consent.  The fact that defendant obtained his
 girlfriend's consent to engage in the same acts he perpetrated on the
 victim is of little relevance to whether the acts were so similar as to
 demonstrate the likelihood that defendant committed them.  It is true that,
 in many rape and sexual assault cases, the prior act evidence admitted to
 show identity includes the manner of approach and the method of subduing a
 victim.  See, e.g. State v. Johnson, 317 N.C. 417, 421-30, 347 S.E.2d 7, 12-
 15 (1986).  Here, the points of similarity between the prior acts and the
 charged acts, although not related to the approach of the victim or his
 girlfriend, were nonetheless sufficient, in and of themselves, to point to
 the accused.
                                     B.
      Evidence of prior acts that is relevant under V.R.E. 404(b) may still
 be excluded under V.R.E. 403, (FN4) if its prejudicial effect outweighs its
 probative value.  State v. Bevins, 146 Vt. 129, 135, 498 A.2d 1035, 1039
 (1985).  Defendant argues that, given what he asserts to be the limited
 probative value on the issue of identity, admission of the prior acts might
 have provoked the jury to punish him for his activity with his girlfriend.
      In Parker, 149 Vt. at 400, 545 A.2d  at 517, we recognized that
 "[v]irtually all evidence for the prosecution in a criminal case is
 prejudicial to some degree at least against the accused."  Thus, evidence
 must be excluded under Rule 403(b) only if it is unfairly prejudicial to a
 defendant.  Plaster, 424 N.W.2d  at 231.  Evidence is unfairly prejudicial
 if its primary purpose or effect is to appeal to a jury's sympathies,
 "arous[e] its sense of horror, provok[e] its instinct to punish, or
 trigge[r] other mainsprings of human action [that] may cause a jury to base
 its decision on something other than the established propositions in the
 case."  1 J. Weinstein & M. Berger, Weinstein's Evidence { 403[03], at 403-
 33-40.
      In balancing probative value against prejudicial effect, the trial
 court looks at the need for prior act evidence in light of other evidence
 available to the prosecution that supports the same issue, as well as the
 degree of its probative value, and the extent to which the jury is likely to
 be aroused to hostility by the evidence.  E. Cleary, supra, { 190, at 565.
      In the instant case, defendant refused to provide forensic evidence
 samples for identification purposes when ordered to do so by the trial
 court.  Identity was the central issue of the case.  The court concluded
 that defendant's refusal had enhanced the significance of other forms of
 identification -- those that could only be shown by circumstantial proof --
 and had therefore made the evidence of prior acts critical to the state's
 case.  See U.S. v. Houser, 929 F.2d 1369, 1373 (9th Cir. 1990) (prior act
 evidence admissible to establish a critical and contested element of a
 crime).  The evidence was admitted with a limiting instruction to the jury
 on the permissible uses of prior act evidence.  See Cardinal, 155 Vt. at
 414, 584 A.2d  at 1154.
      We cannot say that the trial court abused its discretion.  See Parker,
 149 Vt. at 401, 545 A.2d  at 517 (1988); State v. Picknell, 142 Vt. 215,
 230, 454 A.2d 711, 718 (1982).  We agree that the evidence was highly
 probative on the issue of identity.  Except for cocaine use, Bruyette's
 prior consensual acts with his girlfriend were not criminal, so that little
 danger existed that the jury would convict defendant because of past
 criminal conduct.  Although the jury may have considered, as defendant
 argues, that his conduct with his girlfriend was "abnormal" or "anti-
 social," we do not find as a matter of law that the potential for this
 conclusion is so unfairly prejudicial as to outweigh the probative value of
 the evidence.

                                     II.
      We now address whether the trial court erred in denying defendant's
 motion to suppress his tape recorded conversations with his  girlfriend.
 Although police first obtained a search warrant to record the
 conversations, defendant argues that certain information given by his
 girlfriend and set forth in the probable cause affidavit did not satisfy the
 standards of V.R.Cr.P. 41(c) on hearsay, and that, even if the Rule was
 satisfied, the affidavit as a whole did not provide sufficient probable
 cause for the warrant.(FN5)
      Detective Linda Jones of the Rutland Police Department was the
 affiant.  Three persons provided the information to Detective Jones that
 made up the pertinent sections of her affidavit -- the victim, a police
 officer who knew defendant, and defendant's girlfriend.  The victim gave a
 brief description of the sexual assault that occurred on April 21, 1987, on
 Hopkins St., including that the assailant was masked and forced her to wear
 a blindfold.  The victim was able to state that the assailant had curly
 hair, a beard and a mustache, and that the assailant stated that if "she
 were his, she would be his whore in the bedroom and would be treated like a
 queen and that when she went out the door, she would look like a lady."
      The police officer who knew defendant, Lt. Pockette of the Rutland
 Police Department, "advised . . . that one Joseph Bruyette fit the
 description of the assailant. . . .  Bruyette had been assaultive to his
 girlfriends. . . .  Bruyette told [Pockette] that women were his property
 and that he owned them."
      Paragraph 5 contained the girlfriend's information:
           [Bruyette's girlfriend] came into the Police Station on
           4/24/87 and requested to talk to Lt. Pockette and me.
           [She] is Bruyette's present girlfriend.  [She] had seen
           the description of the assailant in the newspaper and
           told me that Bruyette did fit the description.  [She]
           also stated that Bruyette had told her that he had done
           something all by himself and that she felt he was
           capable of doing it because of past experiences with
           him.  [She] stated that on 4/21/87 in the afternoon
           hours she cut his beard off.  She stated he told her not
           to tell anyone why he had done this.  [She also] stated
           that when Bruyette told her that he had done something
           all by himself, she told him she didn't want to know
           about it because then she wouldn't have to lie about
           anything.
 Defendant takes specific issue with the paragraph above, contending that the
 hearsay therein did not demonstrate the informant's basis of knowledge and
 veracity as required by Rule 41(c).
      Rule 41(c) permits the use of hearsay, in whole or in part, to satisfy
 a finding of probable cause, as long as "there is a substantial basis for
 believing the source of the hearsay to be credible and for believing that
 there is a factual basis for the information furnished."  In State v.
 Ballou, 148 Vt. 427, 433, 535 A.2d 1280, 1283 (1987), we held that Rule
 41(c)'s standard for issuing warrants based on hearsay adopts the two-
 pronged test of Aguilar v. Texas, 378 U.S. 108, 110-16 (1964), and Spinelli
 v. United States, 393 U.S. 410, 415-19 (1969).  The purpose of the test is
 to ensure that a judicial officer, to whom application for a warrant is
 addressed, has information from which to make an independent determination
 of an informant's basis of knowledge and veracity.  State v. Barrett, 132
 Vt. 369, 373, 320 A.2d 621, 624-25 (1974); 1 W. LaFave, Search and Seizure {
 3.3(a), at 613 (2d ed. 1987).
      Here, a judicial officer could conclude independently that the
 information in paragraph 5 of the affidavit demonstrated an adequate basis
 of knowledge and was reliable.  First, all of the girlfriend's information
 was based on personal knowledge, by virtue of her special relationship to
 defendant, as well as her observations of his conduct and conversations with
 him shortly after the crime occurred.  Second, she identified herself, which
 "substantially minimizes the danger of casual rumor or irresponsible
 conjecture [that] accompanies the report of an anonymous professional
 informant."  State v. Northness, 20 Wash. App. 551, 552, 582 P.2d 546, 549
 (1978).  Third, it was she who approached the police, and, we may infer, did
 so at the risk of serious reprisal by defendant.  Fourth, her information
 was corroborated by other facts in the affidavit.  Independent police
 investigation had already centered on defendant because he was "assaultive
 to his girlfriends," believed he owned women, and fit the physical
 description of the assailant.
      The only questions remaining are whether the entire affidavit provided
 sufficient information to establish probable cause to believe that defendant
 committed these crimes and that evidence of the crimes would be found in
 conversations with his girlfriend.  It is significant that two persons, Lt.
 Pockette and Bruyette's  girlfriend, had concluded independently that
 defendant was a possible suspect, because of his physical description and
 attitude toward women.  The girlfriend added the additional and critical
 facts that defendant wanted his appearance altered on the same day as the
 sexual assault, and that he had told her he had "done something all by
 himself."  These facts were adequate to permit a judicial officer to
 conclude that there was probable cause to believe defendant committed the
 crime.  It was then a reasonable inference, based on defendant's previous
 statement to his girlfriend, that he had "done something," that he would
 divulge more about it to her in private conversation.  Therefore, the
 evidence of the tape-recorded conversations was properly admitted.
                                    III.
                                     A.
      Defendant was charged initially with one count of sexual assault
 outside the apartment and one count of sexual assault inside the apartment.
 He was arraigned on the charges and pled not guilty.  Subsequently, the
 State amended the latter count to charge a third count of sexual assault
 inside the apartment.  Defendant was not formally arraigned on the charges,
 as amended, and was not asked to plead to the charge in court; he contends
 that these omissions require reversal.
      A central purpose of an arraignment is to insure that a defendant
 understands the nature of charges against him so that he can prepare a
 defense.  See W. Lafave & J. Israel, Criminal Procedure Ch. 20.4, at 802
 (1985).  It may be reversible error if a defendant is not arraigned on any
 charge, State v. Drown, 85 Vt. 233, 239-40, 81 A. 641, 643 (1911)
 overruled, in part, State v. Prouty, 94 Vt. 359, 365-69, 111 A. 559, 562-64
 (1920), or if an arraignment is not held after a material change is made to
 the charges.   E.g., State v. Cardwell, 187 Mont. 370, 376, 609 P.2d 1230,
 1233 (Mont. 1965); Hanley v. Zenolf, 81 Nev. 9, 12, 398 P.2d 241, 242-43
 (1965).
      Here, no circumstances that would require reversal were present.
 Defendant knew the nature of the additional sexual assault charge at the
 time of his arraignment and plea.  The amendment made no material change to
 any of the charges.  The amendment did not allege additional facts; it
 simply separated the original second count into two and pled each with
 greater specificity.  There was no prejudice to defendant from his failure
 to be arraigned after the charges were separated.  See State v. Brown, 306
 N.C. 151, 174, 293 S.E.2d 569, 584 (1982) (failure to arraign only
 reversible error if defendant not properly informed of the charge against
 him).  Therefore, the trial court's failure to arraign defendant on the
 amended charge was not reversible error.
                                     B.
      Defendant also maintains that his conviction should be reversed because
 the State did not provide an affidavit establishing probable cause to
 support the amended sexual assault charge.  He cites V.R.Cr.P. 4(b), which
 prohibits issuing arrest warrants or summonses on an information unless a
 judge makes a probable cause finding.  The State did not, however, request a
 summons or arrest warrant when the sexual assault charge was amended.
       A defendant must inform a trial court when he reasonably believes that
 he is entitled to a remedy, or when he believes that a court should act on
 his behalf.  State v. Hood, 123 Vt. 273, 277, 187 A.2d 499, 502 (1963);
 V.R.Cr.P. 12(f); see State v. Welch, 136 Vt. 442, 444, 394 A.2d 1115, 1116
 (1978).  In this case, the amendment to which defendant now objects was
 entered on October 17, 1988.  Defendant did not object at that time, nor did
 he request a probable cause review.  Having failed to do so, he waived the
 issue.  State v. Wright, 154 Vt. 512, 520, 581 A.2d 720, 725-26 (1989).
                                     IV.
      Although defendant was represented by counsel, he filed a pro se brief
 challenging the admission of his girlfriend's testimony to the effect that
 he owned certain items of physical evidence found in a garage that he
 shared with her.  He also asserts that the evidence was illegally seized
 because the police did not have a search warrant.  The trial record
 indicates that Bruyette's girlfriend told the police that some personal
 property she shared with defendant was stored in a garage, and that she
 voluntarily consented to participate in a search through this property for
 evidence to be used in this case.  At the garage, the police watched while
 she physically searched the shared bags and boxes containing the property in
 question.  During the search, she showed many different items to the police
 and asked if they had evidentiary value.  Among these were a silver-colored
 ski mask, a knife, a telephone cord, and an elastic bungi-cord, all of which
 were admitted into evidence over defendant's objection.  Defendant's brief
 fails to identify any legal basis to justify suppressing her testimony about
 this physical evidence, and we can think of no basis for doing so.
      Defendant's contention that the evidence was improperly seized because
 the police failed to obtain a search warrant is also without merit.  The
 trial court found, with ample support in the record, that defendant and his
  girlfriend had equal and unlimited access to the items under
 consideration.  In these circumstances, the law recognizes the power of
 either joint owner to consent to a police search of the property.  United
 States v. Matlock, 415 U.S. 164, 171 (1974); Frazier v. Cupp, 394 U.S. 731,
 740 (1969); see State v. Chenette, 151 Vt. 237, 249-50, 560 A.2d 365, 373-74
 (1989)(where defendant's files not kept in a special location, or under lock
 and key, custodian of records had apparent authority to consent to search
 and seizure).  The court also found, again, with ample support, that the
 girlfriend's consent to the search was freely and validly given.  It
 follows that the search was not unreasonable, even in the absence of a
 warrant.
      Affirmed.


                                         FOR THE COURT:



                                         ________________________________
                                         Associate Justice


FN1.  Vermont Rules of Evidence are patterned on the federal rules, as are
the Rules of Evidence of Ohio and numerous other states.

FN2.  See Annotation, Admissibility, in Rape Case, of Evidence That Accused
Raped or Attempted to Rape Person Other than Prosecutrix, 2 A.L.R. 4th 330,
395-403 (1980).

FN3.  The testimony shows at least eleven points of similarity between the
victim's testimony and that of the girlfriend.

FN4.  V.R.E. 403 states:  Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.

FN5.  The concurrence holds that the electronic participant monitoring
conducted in this case is controlled by State v. Brooks, No. 87-339, 2 Vt.
L. W. 450, 451 (Nov. 1, 1991), which held that no warrant was required for
such monitoring where the participants talked to each other in a public
parking lot, through the open windows of two cars.  The concurrence, in our
view, reads too much into Brooks.  The potential areas of Article 11
protection between the extremes presented in State v. Blow, No. 88-422, 2
Vt. L. W. 447 (Nov. 1, 1991) and Brooks are an open question.  We do not
view Brooks as being sufficiently expansive to be necessarily
indistinguishable from this case, and, therefore, prefer to ground our
decision on an alternative basis.

-----------------------------------------------------------------------------
                                  Concurring


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revisions before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.

                                 No. 90-098


 State of Vermont                             Supreme Court

      v.                                      On Appeal from
                                              District Court of Vermont,
 Joseph Bruyette                              Unit No. 1, Rutland Circuit

                                              September Term, 1991

 Paul F. Hudson, J.

 James P. Mongeon, Rutland County State's Attorney, Rutland, for plaintiff-
    appellee

 Robert Katims of Martin & Paolini, Barre, for defendant-appellant

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


      DOOLEY, J., concurring as to Part II.  I join in all parts of the
 majority opinion except for Part II, which is unnecessarily grounded on
 whether there was a showing of probable cause to support the warrant.  The
 issue is entirely controlled by State v. Brooks, 2 Vt. L.W. 450, 451 (Nov.
 1, 1991) which holds that "warrantless electronic participant monitoring of
 face-to-face conversations" in cases like this "does not violate the
 protections of Article 11 of the Vermont Constitution."  The applicable
 federal law under the Fourth Amendment to the United States Constitution is
 similar.  See United States v. Caceres, 440 U.S. 741, 750-51 (1979); United
 States v. White, 401 U.S. 745, 751 (1971).  Thus, the participant monitoring
 in this case is valid without a warrant and without a finding of probable
 cause.  The motion to suppress was properly denied and there is no reason to
 go further.  I am authorized to state that Chief Justice Allen and Justice
 Gibson join in this concurrence.



                                         Associate Justice