State v. Holcomb

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as well as formal revision before publication in the Vermont Reports.
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                                No. 90-275


State of Vermont                             Supreme Court

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

David R. Holcomb, Jr.                        January Term, 1991


Matthew I. Katz, J.

William Sorrell, Chittenden County State's Attorney, Burlington, and
  Pamela Hall Johnson, Department of State's Attorneys, Montpelier,
  for plaintiff-appellee

Kenneth A. Schatz, Acting Defender General, and William A. Nelson,
  Appellate Attorney, Montpelier, for defendant-appellant


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


     DOOLEY, J.   Defendant appeals his conviction after a jury trial of
lewd and lascivious conduct with a fourteen-year-old boy.  He argues that
the trial court committed plain error (1) in not requiring the State to
elect between the two acts of lewd and lascivious conduct the evidence
disclosed, and (2) in failing to charge the jury on the limited purpose for
which evidence of a crime not charged was admitted.  We affirm.
     The information charged defendant with committing a lewd act on the
body of the child "by fondling his genital area and attempting to remove his
pants."  The victim's testimony was that he was staying at defendant's house
for the evening, and sometime after midnight he went to sleep on a couch
while watching television.  Thereafter, he felt defendant's hands touching
his genitals and trying to unbuckle his pants.  He confronted defendant who
told him to go back to sleep, which he did.  He again awoke at some later
point when defendant had a hand over his mouth and was grabbing him by the
testicles.  A struggle ensued, and the victim ran to a nearby apartment
crying that he had been raped.  This occurred between 2:30 and 3:00 A.M.
     Although defendant argues here that the State was required to elect
between the two lewd acts, he did not raise this issue to the trial judge.
Defendant argues that there is no preservation requirement in cases where
the State's evidence shows more than one criminal act, at least two of the
acts are covered by the information, and the State fails to elect between
the acts.  Put another way, defendant argues that the failure to elect, even
in the absence of a request by defendant, is always plain error because we
cannot say with certainty that the jury convicted unanimously on the same
act.  Defendant's argument finds some support in State v. Bonilla, 144 Vt.
411, 477 A.2d 983 (1984) and State v. Corliss, 149 Vt. 100, 539 A.2d 557
(1987).
     Bonilla was an arson case in which the evidence disclosed three
separate acts of arson on the same building, each occurring on a separate
day.  The Court relied upon a long line of cases requiring the State to
elect in such circumstances, but each of these cases involved instances
where the defendant sought an election.  See State v. Blair, 109 Vt. 306,
307, 196 A. 242, 243 (1938); State v. Coomer, 105 Vt. 175, 178, 163 A. 585,
587 (1933); State v. Field, 95 Vt. 375, 379, 115 A. 296, 297-98 (1921);
State v. Barr, 78 Vt. 97, 100, 62 A. 43, 44 (1905).  See also State v.
Bailey, 144 Vt. 86, 98, 475 A.2d 1045, 1052 (1984) (election requirement
discussed but found inapplicable because the specific acts were so related
as to form one transaction).  In Bonilla, the defendant failed to seek an
election, and the State argued that this failure constituted a waiver of the
issue.  Relying on cases from other states, we held that the failure of the
trial court to require an election or "to give appropriate jury
instructions" was plain error.  Bonilla, 144 Vt. at 416, 477 A.2d  at 986.
     Corliss is similar to Bonilla except that there is no indication
whether the State raised preservation.  In fact, the opinion does not
indicate whether the defendant sought an election in the trial court.
Instead, the opinion focuses on whether the two acts of burglary, separated
by hours, were so closely related in time and circumstances as to be one
felonious act.  We held that they were not and reversed for failure of the
State to elect between them.  Corliss, 149 Vt. at 103, 539 A.2d  at 559.
     Defendant overreads Bonilla and Corliss into a plain-error per se rule.
We specifically held in State v. Roy, 151 Vt. 17, 23, 557 A.2d 884, 888
(1989) that we do not find "that some errors are plain per se."  We went on
to note that:
         We believe it would be bad policy to create a category
         of errors which are plain per se.  As the Supreme Court
         of Rhode Island noted recently in response to a similar
         argument, such a rule would apply its analogue to
         V.R.Cr.P. 52(b) "in such a way as to destroy Rule 30."
         Further, such a rule would reduce any incentive for
         trial counsel to object to errors that involve
         omissions of essential elements of the crime.

Id. (citations omitted).  V.R.Cr.P. 30 contains the requirement that the
parties must object to the charge to the jury in order to claim error in the
charge on appeal.  It is equally applicable here.
     We also note that in general the failure to object in a case of
duplicity of charges is a waiver of the issue.  See 2 W. LaFave & J. Israel,
Criminal Procedure { 19.2(e), at 457 (1984).  The suggestion of a contrary
rule in Bonilla was made based on cases from a minority of states, primarily
Tennessee, Kentucky and Oklahoma.  See Bowen v. Commonwealth, 288 Ky. 515,
518, 156 S.W.2d 870, 871 (1941); Dugan v. State, 360 P.2d 833, 834-35 (Okla.
Crim. App. 1961); Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973).
Later cases from these states, however, undercut the argument that they
adopted a plain-error per se rule.  See Thacker v. Commonwealth, 453 S.W.2d 566, 569 (Ky. 1970) ("It seems to have been assumed in most of our cases
that failure of the trial court to require or to make the election is
automatically prejudicial so as to require reversal. . . .  But we are not
convinced that such an error necessarily is prejudicial in all cases . . .
.") (emphasis in original); State v. Anderson, 748 S.W.2d 201, 203 (Tenn.
Crim. App. 1985) (failure of state to elect is not reversible error in
absence of defense objection where there is no showing defendant was
hampered in the presentation of his defense and evidence was sufficient to
support a finding of guilt beyond a reasonable doubt on all offenses shown
in the proof).
     For the above reasons, we reject defendant's argument that the failure
of the trial court to force an election or charge the jury that it is
limited to a particular act is plain error per se in the absence of a
defense objection.  As in Roy, we adopt the familiar standard of review for
plain error.  This means we will reverse for an unpreserved election error
only in rare and extraordinary cases where we find that the omission in the
charge and in the State's actions so affects the substantial rights of the
defendant that we will notice the error despite lack of proper objection.
Roy, 151 Vt. at 23, 557 A.2d  at 888.  In using this standard we must keep in
mind the importance of jury unanimity on the charges on which they convict
and the fact that we found plain error on the circumstances present in
Bonilla.
     We do not find plain error here.  There was no reason for jurors to
distinguish between the two alleged acts.  Defendant's defense did not
distinguish between the two acts, and he was not hampered in preparing a
defense.
     Moreover, the facts show this case fits within an exception to the
election requirement where the acts were so closely related in time and
circumstances as to constitute one continuous offense or transaction.  See
State v. Bailey, 144 Vt. at 98, 475 A.2d  at 1052.  In Bailey, the acts of
sexual assault on a minor took place over a one-and-one-half-hour period and
we held "[t]he many acts of sexual conduct here were so related as to con-
stitute but one event."  Id. at 99, 475 A.2d  at 1053.  The facts of this
case are similar to those in Bailey.  The acts were closely related,
occurring in the same place within a relatively brief period and involving
substantially identical contact between defendant and the victim.  They
constituted one continuous offense.
     The second issue relates to the testimony of a State witness that
defendant offered him fifty dollars to beat up the victim.  This happened
after the alleged lewd acts and when defendant knew the police were looking
for him in response to the victim's complaint.  The court allowed in the
evidence pursuant to V.R.E. 404(b) after the prosecution gave the notice
required by V.R.Cr.P. 26(c).  Defendant's complaint here is that the trial
court gave no limiting instruction on the proper use of the evidence.
Again, defendant failed to raise the issue with the trial court.
     As with the first issue, we must first address the standard of review.
On this point, defendant also relies on State v. Corliss.  In that case, the
state put in evidence of another burglary to show plan and motive, and the
trial court failed to give a limiting instruction to tell the jury the
limited purpose for which the evidence was admitted.  This Court held that
such an instruction was required by the clear language of V.R.Cr.P. 26(c).
Corliss, 149 Vt. at 104, 539 A.2d  at 560.
     We do not read Corliss as dispensing with preservation requirements in
this area.  Since Corliss, we have reiterated that a defendant must request
a limiting instruction or object to the jury charge given in order to pre-
serve the issue.  See State v. Recor, 150 Vt. 40, 49, 549 A.2d 1382, 1389
(1988).  We see no reason to have a different rule for evidence admitted
under V.R.E. 404(b).  Thus, the failure to give a limiting instruction under
V.R.Cr.P. 26(c), in the absence of a request or objection, will be grounds
for reversal only on a finding of plain error.
     There is no plain error here.  The court gave a general instruction
that defendant was not on trial for any act not alleged in the indictment.
In Corliss, the uncharged bad act was another burglary so there was a risk
that the jury would use the evidence to show a predisposition or character
trait directly related to the charged crime.  Here, the uncharged bad act
was entirely different and created no similar risk.  There is no reason to
believe that the general charge limiting the jury to consideration of the
act alleged in the information was insufficient.
     Affirmed.

                                        FOR THE COURT:




                                        Associate Justice