State v. Goodnow

STATE_V_GOODNOW.91-233; 162 Vt. 527; 649 A.2d 752

[Opinion Filed May 27, 1994]

[Motion for Reargument Denied September 6, 1994]

 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. 91-233


 State of Vermont                             Supreme Court

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

 Peter E. Goodnow                             March Term, 1993



 Edward J. Cashman, J.

 Scot Kline, Chittenden County State's Attorney, and Pamela Hall Johnson,
   Deputy State's Attorney, Burlington, for plaintiff-appellee

 E.M. Allen, Defender General, and Anna Saxman, Appellate Attorney,
   Montpelier, for defendant-appellant



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



      JOHNSON, J.   Defendant appeals his convictions of sexual assault in
 violation of 13 V.S.A. { 3252(a)(1)(B) and lewd and lascivious conduct in
 violation of 13 V.S.A. { 2601.  Defendant claims two errors: (1) that the
 trial court improperly excluded evidence of a prior false accusation of
 sexual misconduct by the victim, and (2) that the court impermissibly
 excluded the defense witnesses' opinions of the complainant's character for
 untruthfulness.  We affirm the convictions.

 

      In light of the issues raised by defendant, it is not necessary to
 review the facts that could have been found by the jury.  It is sufficient
 for purposes of this appeal to note that the victim testified that defend-
 ant, an acquaintance, sexually assaulted her and committed lewd and
 lascivious conduct in her home on June 4, 1988.  Defendant testified on his
 own behalf.  He acknowledged that the acts occurred, but contended that they
 were consensual and that the victim's claims of assault were false.  To
 support his defense, defendant attempted to introduce testimonial evidence
 of a past false accusation of sexual harassment by the victim and of the
 victim's character for untruthfulness.  The trial court excluded the
 testimony regarding the prior allegedly false accusation of sexual
 harassment and limited testimony regarding the victim's character for
 untruthfulness to reputation evidence.
                                      I.
      Vermont's Rape Shield Statute generally bars admission of "[e]vidence
 of prior sexual conduct" of a sexual assault complainant.  13 V.S.A. {3255(a).
 The prohibition is based on a legislative determination that such evidence is
 worthless and legally irrelevant.  State v. Patnaude, 140 Vt. 361, 373, 374,
 438 A.2d 402, 407 (1981).  One exception to this general rule, 13 V.S.A.
 { 3255(a)(3)(C), allows admission of evidence of prior false allegations of
 sexual assault by the complainant.  The exception applies, however, only if:
 (1) it is "of specific instances of the complaining witness' past false
 allegations of violations of this chapter [Sexual Assault]"; (2) it "bears
 on the credibility of the complaining witness or it is material to a fact at
 issue"; and (3) "its probative value outweighs its private character."  Id.
 { 3255(a)(3) & (C).  If a defendant intends to offer evidence under this

 

 exception, the defendant must file written notice of that intent.  13 V.S.A.
 { 3255(b).
      Prior to trial, defendant filed a notice of intent to introduce
 evidence "potentially covered by 13 V.S.A. { 3255(a)(3)" that the victim had
 made "prior false allegations of sexual misconduct and harassment" against
 one Alan Diamond.  In his offer of proof, defense counsel stated that he
 expected to adduce testimony that six to eight years prior to the alleged
 assault, the victim and Diamond were co-workers who became involved in a
 sexual relationship and that after the relationship ended, the victim
 attempted to obtain admissions from him that he had sexually harassed her by
 forcing her to engage in sex to retain employment.  If permitted, Diamond
 would also have testified that the victim profited from this allegation by
 filing a civil suit against their employer and then agreeing to a cash
 settlement.  Defense counsel indicated that he did not care whether the
 existence of the relationship came into evidence, his focus was Diamond's
 proposed testimony that the victim had made a false allegation of sexual
 harassment against him for personal gain.  The trial court excluded the
 proffered testimony.
      Defendant argues that the trial court's ruling was reversible error.
 Though defendant's brief is not a model of clarity as to why the exclusion
 was error, two themes emerge.  The first is that although evidence of the
 victim's past sexual conduct is not admissible pursuant to Vermont's Rape
 Shield Statute, the testimony fell within a statutory exception to that rule
 for evidence of prior false accusations of sexual assault.  See 13 V.S.A. {
 3255(a)(3)(C).  The second is that the Rape Shield Statute did not apply to bar

 

 the testimony, and exclusion of the evidence violated defendant's
 constitutional right to confront the complainant.
      We conclude that the proffered testimony did not fall within 13 V.S.A.
 { 3255(a)(3)(C).  Defendant, as the proponent of the evidence, bore the
 burden of proving its admissibility.  State v. Kelly, 131 Vt. 582, 587, 312 A.2d 906, 909 (1973).  To invoke the exception, defendant needed to
 demonstrate that the victim had made a prior false allegation of sexual
 assault.  Defendant's evidence and argument centered on a claim of sexual
 harassment in the workplace rather than on sexual assault.  On the state of
 the offer, therefore, there was no error in failing to admit the proffered
 testimony under 13 V.S.A. { 3255(a)(3)(C).
      Defendant's second argument is that it was error to conclude that the
 Rape Shield Statute barred this testimony.  Defendant reasons that prior
 false allegations of sexual misconduct are not prior sexual conduct and thus
 are not barred by the Rape Shield Statute.  See, e.g., Smith v. State, 377 S.E.2d 158, 160 (Ga. 1989) (concluding that "the evidence does not involve
 the victim's past sexual conduct but rather the victim's propensity to make
 false statements regarding sexual misconduct").  Instead, defendant argues
 that a majority of jurisdictions admit such evidence as an exception to rule
 of evidence 608(b), which prohibits the use of extrinsic evidence to prove
 "specific instances of the conduct of a witness, for the purpose of
 attacking . . . his credibility, other than conviction of a crime."  These
 courts reason, and defendant urges this Court to agree, that when the issue
 is whether "the prosecutrix in a sex-offense case has made prior false
 allegations" of sexual misconduct, Rule 608(b) "must yield to the
 defendant's right of confrontation and right to 
 
 

 present a full defense."   Id.  The one limit on the admissibility of such 
 evidence is that the court must make a threshold determination of falsity.  
 See, e.g., Little v. State, 413 N.E.2d 639, 643(Ind. Ct. App. 1980)(requiring
 defendant to make threshold showing that prior allegations are "demonstrably 
 false"); State v. Barber, 766 P.2d 1288, 1290 (Kan. Ct. App. 1989) (requiring
 threshold showing that prior allegations have "a reasonable probability of
 falseness"); Miller v. State, 779 P.2d 87, 90 (Nev. 1989) (requiring
 threshold showing that prior allegations are false by a preponderance of the
 evidence).  Defendant then argues that because the trial court did not make
 a preliminary ruling on the falsity of the prior accusation, his conviction
 must be reversed.
      This argument was not offered at trial and, absent plain error, will
 not be considered for the first time on appeal.(FN1) State v. Ringler, 153 Vt.
 375, 379, 571 A.2d 668, 670 (1989).  During the discussion of the
 admissibility of this testimony, the court expressed concern that the
 testimony would violate V.R.E. 608(b) in that it would involve the use of
 extrinsic evidence to impeach on a collateral matter and that the testimony
 was not admissible under the Rape Shield Statute.  Defense counsel then
 argued that the testimony was admissible under V.R.E. 404 because it
 demonstrated a modus operandi by the victim and added that "more latitude
 should be given where it's not used against a defendant but against another
 from constitutional grounds."  This vague reference to "constitutional
 grounds" was not sufficient to preserve the issue for appeal.  "To find
 plain error, we have required a showing that the error is 

 

 so egregious as to result in a 'miscarriage of justice.'"  Deyo v. Kinley, 152
 Vt. 196, 201, 565 A.2d 1286, 1289 (1989).  Defendant has made no such argument 
 or showing in this case.
                                     II.
      Defendant also contends that the court erred in refusing to allow three
 witnesses -- Alan Diamond, Sharon Rosenthal, and Linda Rosario -- to give
 their opinions of the victim's character for untruthfulness.  Defendant
 asserts that the exclusion of the witnesses' testimony was harmful error
 because it prevented him from rebutting the victim's story and secured the
 conviction for the State.
                                     A.
      Defendant offered Diamond's testimony of his opinion of the victim's
 character for untruthfulness, based on his experience in the alleged sexual
 harassment incident.  The admissibility of evidence is addressed to the
 discretion of the trial judge, In re Nash, 149 Vt. 63, 66, 539 A.2d 989, 991
 (1987), and this court will reverse only if the trial judge has abused that
 discretion,  In re S.G., 153 Vt. 466, 473, 571 A.2d 677, 681 (1990).
 Defendant has failed to make such a showing.  Diamond had not seen the
 victim for many years so the trial court could exclude his opinion under
 V.R.E. 403 (exclusion of relevant evidence on grounds of prejudice,
 confusion or waste of time) as based on remote facts and experiences.
                                     B.
      With respect to Sharon Rosenthal, an ex-wife of the victim's husband, the
 record does not support defendant's assertion that the trial court refused to
 permit Rosenthal's opinion.  The State filed a motion in limine to exclude 
 
 

 Rosenthal's testimony, but the trial court deferred ruling on the
 motion until the testimony was offered.  At the close of the State's
 evidence, defendant indicated that he would call Rosenthal to testify, but
 did not do so.  Consequently, because the trial court did not rule
 Rosenthal's testimony inadmissible, this issue is not properly before the
 Court.  State v. Hooper, 151 Vt. 42, 45-46, 557 A.2d 880, 882 (1988).
                                     C.
      Finally, defendant contends that the court improperly excluded the
 opinion testimony of Linda Rosario, the victim's roommate at the time of the
 assault, regarding the victim's character for untruthfulness.  Defendant
 asserts that the trial court improperly construed V.R.E. 608(a), which
 allows the veracity of a witness to be attacked by evidence in the form of
 "opinion or reputation," to allow only testimony regarding the community's
 opinion of the complainant's truthfulness.  Although defendant is correct
 that Rule 608(a) permits a party to attack or support the credibility of a
 witness through the testimony of another witness, giving either a personal
 opinion of the witness's character or stating that person's community
 reputation, he is incorrect in his assertion that he received an adverse
 ruling on this issue.
      During a recess in the middle of Linda Rosario's testimony, the State
 raised its concern that defense counsel would be eliciting testimony from the
 witness regarding the victim's veracity and asked the court to address the 
 issue.  What followed was a lengthy discussion of the meaning of Rule 608(a).
 The State erroneously took the position that the witness could not give her 
 personal opinion of the witness's veracity, and defendant argued otherwise.
 The trial court indicated that it was having difficulty understanding 

 

 the requirements of V.R.E. 608(a), stating first that a bare
 opinion is "worthless," then stating that the "opinion" would have to be
 that of the community and also stating, "I think we ought to let her state
 her opinion . . . ."  After considerable disagreement without a ruling,
 defense counsel stated that "maybe it's best to try and get it in under
 reputation . . . ."  At that point, the discussion focused on the specifics
 of the testimony including what could be asked and how the questions would
 be phrased and then defense counsel left to prepare the witness.  When the
 trial resumed, defense counsel did not ask Rosario a question about her
 opinion of the victim's reputation and did not raise the issue again.  The
 trial court did not make an adverse ruling, and therefore there is no error
 for review.
      Affirmed.



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                                  Footnotes

FN1.  In view of our disposition, we do not reach the merits of defendant's
 arguments that prior false allegations of sexual misconduct are outside the
 scope of the Rape Shield Statute and that a defendant's confrontation clause
 rights require that sexual assault cases be treated differently from every
 other crime.