State v. Winter

STATE_V_WINTER.93-130; 162 Vt. 388; 648 A.2d 624

[Opinion Filed June 10, 1994]

[Motion for Reargument Denied July 20, 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. 93-130


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Bennington Circuit

 Neal Winter                                  January Term, 1994



 Robert Grussing III, J.


 Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt and David
      Tartter, Assistant Attorneys General, Montpelier, for plaintiff-
      appellee

 Barry E. Griffith, Rutland, for defendant-appellant


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


      DOOLEY, J.  Defendant Neal Winter was convicted of one count of sexual
 assault in violation of 13 V.S.A. { 3252(a)(1)(A).  He now appeals, raising
 the single issue that evidence that he committed a sexual assault on another
 woman, over four years prior to the charged incident, was improperly
 admitted.  We agree and reverse and remand for a new trial.
      The incidents for which defendant was charged occurred on two nights in
 November 1991.  Defendant was employed at a group home in Bennington and
 often was the sole staff person present overnight.  The group home, which
 housed six persons, was run by a local mental health agency as a temporary

 

 treatment facility for patients with mental illness or substance abuse
 problems.
      In November 1991, the victim in this case was thirty-two years old, and
 had entered the group home to serve a house arrest sentence for a DUI
 conviction.  She testified that defendant, whom she had known in passing,
 began making unwelcome sexual remarks to her.  She described the following
 incidents.
      On the first night, defendant entered her bedroom while she was asleep,
 knelt by her bed and fondled her breast.  She awoke and called him a name,
 whereupon he left.  Two nights later, the victim awoke to find defendant
 performing oral sex on her.  Thereafter, he overpowered her and compelled
 her to have intercourse with him.  He warned her against disclosing what
 occurred, stating that no one would believe her, and threatening to kill her
 if she talked.
      The State charged defendant with lewd and lascivious conduct for the
 events of the first night and two counts of sexual assault, one involving
 the oral sex and the other the intercourse, for the events of the second
 night.  At trial, the State called the victim and other residents and staff
 of the home, who corroborated various details of the victim's account.  In
 the investigation of the claims, defendant denied having had sex with the
 victim.  At trial, however, defendant testified that he did have sex with
 the victim, but that it was consensual.
      Defendant was found guilty of one count of sexual assault, the count
 charging him with committing nonconsensual oral sex on the second night.
 After the court imposed a sentence of four to ten years, defendant appealed.

 

      The evidence involved in this appeal was that in August 1987, when
 defendant was living in New York state, he sexually assaulted his children's
 seventeen-year-old babysitter, S.M., on numerous occasions in his home.
 Although the assaults began by forced vaginal intercourse, on later
 occasions defendant began with oral sex.  S.M. reported the sexual assaults,
 and they were investigated by the New York police.  Defendant stated that he
 had sex with S.M. on one occasion and that it was consensual.
      The State gave notice that this evidence would be introduced through
 the testimony of S.M., and defendant filed a motion in limine to exclude the
 evidence.  Based on the memoranda of the parties, and without a hearing, the
 trial court denied the motion.  It found the evidence admissible to show
 motive and a common scheme, but not to show a plan.  Holding that
 admissibility turned on similarity between the former incident and the
 incident for which defendant is charged, as well as proximity in time, the
 court found the requisite similarity and proximity.  The court found six
 similarities: (1) a power differential -- the employer/employee
 relationship with S.M., the relationship of a "prison guard" to the victim;
 (2) sexual comments as a manner of approach; (3) initial contact with the
 woman's breasts; (4) the use of physical force to complete the sex acts; (5)
 oral contact to facilitate intercourse; and (6) a claim of consent as a
 "cover-up."  It concluded that the passage of four years did not render the
 S.M. incident too remote.  The court also balanced probative value against
 prejudicial effect and found probative value controlled because the State
 had a need for the testimony to deal with the credibility problem caused by
 a victim who "was a resident of a group home for the mentally ill."

 

      S.M. testified at the trial.  In its instructions, the court explained
 the limited use that the jury could make of S.M.'s testimony and informed
 the jury that the testimony could not be considered for propensity purposes.
 The instructions authorized the jury to consider the evidence only if it
 showed motive or common scheme.  The court defined these authorized
 purposes:
           As to motive, it is not an essential element of the
         state's case that it . . . prove that the defendant had
         a specific goal or motivation or reason to commit these
         acts alleged.  However, whether or not a person had a
         motive or reason for the doing of an act is proper for
         your consideration in determining if in fact the person
         did the act in question, and also in determining the
         manner that the act in question may have occurred.

           As to common scheme, what this refers to is that if
         it is claimed that a person on the occasion in question
         did certain acts in a particular manner, and there is
         evidence that on a prior occasion that person did
         similar acts in a similar manner, then one could infer
         or conclude that it is more likely that the acts in
         question did occur in the manner alleged.

 The court went on to charge the jury that it should look at similarity and
 proximity in time in determining the weight to be assigned S.M.'s testimony.
      The question before us involves the application of V.R.E. 404(b), which
 provides:
         (b)  Other crimes, wrongs or acts.  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, knowledge,
         identity, or absence of mistake or accident.

 The rule excludes "bad act" evidence "introduced for the purpose of showing
 a general propensity to commit the acts in question."  State v. Bruyette,
 158 Vt. 21, 27, 604 A.2d 1270, 1272 (1992).  The evidence may be admitted,
 however, if relevant to some other "legitimate issue" in the case.  Id.

 

 Even if the evidence survives the Rule 404(b) test, it still must pass the
 balancing test of Rule 403.  See State v. Ashley, ___ Vt. ___, ___, 623 A.2d 984, 985 (1993).
      Although Rule 404(b) is most often invoked in cases in which the
 defendant is charged with a sexual misconduct crime, we have not carved out
 a special propensity rule for such crimes as an exception to Rule 404(b).
 Thus neither before the adoption of the Vermont Rules of Evidence, nor
 since, have we allowed the admission of acts of sexual misconduct to show a
 lustful disposition.(FN1)  Even if we had created such a rule in the past, it
 would now clearly be inconsistent with Rule 404(b).  See Getz v. State, 538 A.2d 726, 733-34 (Del. 1988); Mitchell v. State, 539 So. 2d 1366, 1372
 (Miss. 1989).  See generally E. Imwinkelried, Uncharged Misconduct Evidence
 { 4.18, at 4-50 (1994).
      Just as we have no special exception to Rule 404(b) for sexual
 misconduct cases, neither have we adopted special, more liberal,

 

 interpretations of Rule 404(b) to allow the admission of prior bad act
 evidence in such cases, especially when we would not admit similar evidence
 in other cases.  Cf. State v. Hurley, 150 Vt. 165, 168, 552 A.2d 382, 384
 (1988) (explaining special admission rules in other states for child sexual
 abuse cases).  We have, however, considered the special proof problems in
 child sexual abuse cases in the Rule 403 balancing process.  See State v.
 Johnson, 158 Vt. 344, 353, 612 A.2d 1114, 1119 (1992).
      The closest we have come to a special rule for prior bad act evidence
 in sexual misconduct cases is when, in a prosecution for sexual abuse of a
 child on a particular occasion, the State has been allowed to show that the
 act charged is only one of a continuous series of acts.  See State v.
 Forbes, 4 Vt. L.W. 309, 309-10 (Nov. 19, 1993).  We recently acknowledged
 that we must be "vigilant" in reviewing uncharged misconduct evidence
 because of the danger of misuse and the potential for unfair prejudice to
 the defendant, and reiterated that the grounds for admission itemized in
 Rule 404(b) are not exclusive.  Id. at 309.  We then held such evidence is
 admissible to supply a context for the charged acts:
         The point of establishing the existence of an incestuous
         relationship was not to make an issue of defendant's
         general character for sexually abusing females of minor
         age.  Rather, the point was to establish specifically
         defendant's propensity to engage in sexual contact with
         his daughter as an object of his desire.

 Id. at 310.  The Forbes holding is fully consistent with Rule 404(b), and it
 is applicable only when there are continuous acts with the same victim.
      We must also emphasize that the grounds for admission specified in
 Rule 404(b) are not magic words, the utterance of which automatically admits
 all uncharged misconduct evidence.  The State has the burden to show
 precisely how the proffered evidence is relevant to the theory advanced, how

 

 the issue to which it is addressed is related to the disputed elements in
 the case, and how the probative value of the evidence is not substantially
 outweighed by its prejudicial effect.  See People v. Golochowicz, 319 N.W.2d 518, 524 (Mich. 1982).  The evidence must relate to an element of the
 offense or the defense that is genuinely in issue.  Id.; see also State v.
 Goodrich, 432 A.2d 413, 417 (Me. 1981); State v. Blackey, 623 A.2d 1331,
 1333 (N.H. 1993).
      Recognizing that it could not admit S.M.'s testimony on propensity
 grounds, the trial court relied on two nonpropensity grounds, motive and
 common scheme.  We conclude that neither applies in this case.(FN2)
      The clearest example of using a prior crime to establish motive is
 when the victim knows that the defendant committed the prior crime and the
 defendant kills the victim to prevent disclosure.  We have used similar
 logic in sexual assault cases.  For example, in State v. Recor, 150 Vt. 40,
 549 A.2d 1382 (1988), the defendant was charged with sexually assaulting his
 stepdaughter in the summer of 1984.  On direct examination, the stepdaughter
 testified that defendant had sexually assaulted her on the occasion charged.
 On cross-examination, the stepdaughter testified that she hated defendant,
 in fact had hated him since at least 1982, because he was not her natural
 father, he disciplined her, and he made her do chores.  On redirect, the
 State was allowed to rebut the defendant's attempt to show the victim's
 motive to lie with evidence that the real reason for the victim's hatred was
 that defendant had also sexually assaulted her in 1982.  We upheld the

 

 admission of the rebuttal evidence as going to motive, thus falling within a
 permissible use of evidence under Rule 404(b).  Id. at 44, 549 A.2d  at 1386.
      We liberally allowed bad act evidence bearing on motive in State v.
 Jones, ___ Vt. ___, 631 A.2d 840 (1993), and State v. Parker, 149 Vt. 393,
 545 A.2d 512 (1988).  In each case, the uncharged misconduct evidence was
 connected to the offense charged to explain why the offenses occurred as
 they did.  In Jones, the uncharged misconduct evidence consisted of love
 poems written by the defendant to the minor victim that explained the
 defendant's desires.  ___ Vt. at ___, 631 A.2d  at 844.  In Parker, the prior
 bad acts were sexual assaults on the victim's older brother, who became
 unavailable to the defendant thereby causing the defendant to switch his
 attention to the victim.  149 Vt. at 399, 545 A.2d  at 516.
      In this case, however, there is no connection between the alleged
 assault on S.M. and the assault on the victim that explains why the latter
 occurred as alleged.  Indeed, the logic the jury was invited to use was that
 because defendant was motivated by a desire for sexual gratification in
 assaulting S.M., it was more probable that he was similarly motivated in
 assaulting the victim in this case.  As such, this is no more than an
 impermissible propensity analysis.  See State v. Saltarelli, 655 P.2d 697,
 700 (Wash. 1982) (evidence of defendant's prior assault on another woman not
 logically related to rape of victim, and therefore "evidence seems to
 achieve no more than to show a general propensity to rape, precisely
 forbidden by [Rule] 404(b)").  Moreover, it admits the uncharged misconduct
 evidence as bearing on an issue not contested.  There is no question that
 defendant was motivated by sexual gratification whether or not there was

 

 consent.  We conclude that the evidence could not be admitted under Rule
 404(b) to show motive.
      We also cannot accept the alternative rationale advanced by the trial
 court that the uncharged misconduct evidence is relevant to show a common
 scheme.  Rule 404(b) does not mention this rationale as grounds for
 admission, although this phrase has been used in some of our cases, see,
 e.g., State v. Chenette, 151 Vt. 237, 245, 560 A.2d 365, 371 (1989)
 (discussing prosecution's argument that prior bad act evidence showed common
 scheme or plan), and the grounds for admission listed in Rule 404(b) are not
 exclusive.  Forbes, 4 Vt. L.W. at 10.  The concept of a common or single
 scheme has been developed to determine when it is appropriate to try
 separate criminal acts of the defendant together in one case.  See V.R.Cr.P.
 8(a)(2) (multiple offenses may be joined if they constitute "parts of a
 single scheme or plan"); Johnson, 158 Vt. at 350-51, 612 A.2d  at 1117-18
 (discussing single scheme theory).  Using uncharged misconduct evidence to
 show a common scheme is essentially indistinguishable from using such
 evidence to show a plan, another purpose endorsed by the rule.
      The use of uncharged misconduct evidence to show a plan is described in
 detail in State v. Catsam, 148 Vt. 366, 379-82, 534 A.2d 184, 193-94 (1987),
 a case of multiple sexual assaults on a minor victim.  We held:
         Evidence that the defendant previously molested the
         victim, and threatened her with harm if she were to
         reveal the incident, gives rise to the legitimate
         inference that because of the manner in which the prior
         sexual acts were perpetrated, the prior acts and the
         charged crime were part of a concerted scheme or plan of
         molestation.  If the evidence of prior acts establishes
         the existence of such a plan, the necessary connection
         between the prior acts and the crime charged is present,
         bringing the evidence within the scope of Rule 404(b).

 


 Id. at 381, 534 A.2d  at 194.  We acknowledged, however, that admission of
 uncharged misconduct evidence to show a plan "comes perilously close" to
 using such evidence to show propensity and required "a clear inference of
 the existence of a plan from the prior acts."  Id. at 381, 382, 534 A.2d  at
 194.  Two factors were found to be prerequisites to drawing that inference:
 "similarity between the prior acts and the crime charged and proximity in
 time."  Id. at 382, 534 A.2d  at 194.
      Our acknowledgement of the danger of admitting uncharged misconduct
 evidence to show a plan demonstrates an understanding that cases like Catsam
 can cause courts to stretch traditional logical constraints.  See, e.g.,
 State v. Brooks, 810 S.W.2d 627, 633 (Mo. Ct. App. 1991) (discussing state
 courts' adoption of so-called "spurious plan" theory).  See generally
 Imwinkelried, The Plan Theory for Admitting Evidence of the Defendant's
 Uncharged Crimes: A Microcosm of the Flaws in the Uncharged Misconduct
 Doctrine, 50 Mo. L. Rev. 1 (1985).  Our Catsam insistence on a "clear
 inference of the existence of a plan" is intended to ensure that a "stretch"
 does not become a method of selective and arbitrary use of propensity
 evidence.  Catsam, 148 Vt. at 382, 534 A.2d  at 194.
      The trial court here recognized the difficulty of drawing the
 inference of the existence of a plan from the S.M. evidence and attempted to
 evade the Catsam holding by finding that the S.M. events were too remote in
 time to show a plan, but that instead they showed a "common scheme."  Even
 if we thought that there was some distinction between a scheme and a plan
 such that temporal proximity is unnecessary for a scheme, we cannot so
 easily eviscerate the Catsam requirements without crossing the "perilously
 close" line to propensity evidence.

 

      Catsam clearly holds that temporal proximity is a prerequisite to
 admission in plan or scheme cases.  Id.  Thus, we have followed the majority
 of states in rejecting the notion that temporal remoteness goes only to the
 weight of the evidence, not its admissibility.  Compare State v. Jones, 369 S.E.2d 822, 825 (N.C. 1988) (proximity in time determines not only weight,
 but admissibility) with State v. Casady, 491 N.W.2d 782, 785 (Iowa 1992)
 (temporal remoteness "affects the weight rather than the admissibility" of
 proffered evidence).  See generally Imwinkelried, Uncharged Misconduct
 Evidence, supra, { 8:08, at 8-16 ("more sensible prevailing view" is that
 temporal remoteness can render evidence legally irrelevant, hence
 inadmissable).
      We have not adopted hard-and-fast time limits; we believe that the
 necessary proximity must vary with the circumstances.  For example, in State
 v. Hurley, the defendant was charged with sexually assaulting his nephew,
 and we held that evidence that he had sexually assaulted cousins of the
 victim some ten to twelve years before the charged incident was too remote
 to be admitted. 150 Vt. at 169, 552 A.2d  at 385.  By contrast, in Catsam, we
 held that incidents involving the same victim and going back two years
 before the charged event were properly admitted.  148 Vt. at 382, 534 A.2d 
 at 194.
      The precise amount of elapsed time is less important than the relation
 between the passage of time and the inference that there is an overall plan
 to the defendant's actions.  Thus, in child sexual assault cases, we see no
 difficulty in admitting evidence of much earlier assaults on the victim when
 the evidence also shows such assaults have continued right up to the charged
 event.  See Ashley, ___ Vt. at ___, 623 A.2d  at 985 (evidence of assaults on

 

 the victim going back over six years).  Similarly, the facts may show that
 a defendant has lacked the opportunity to put a plan into effect despite the
 passage of long periods of time.  For example, the defendant may have been
 in prison and unable to commit similar crimes until released.  See, e.g.,
 State v. Crocker, 409 N.W.2d 840, 843 (Minn. 1987); State v. Davis, 398 S.E.2d 645, 650 (N.C. Ct. App. 1990).
      In this case, the State's theory that defendant had a plan or common
 scheme linking his assault on S.M. to his assault on the victim here
 founders upon the passage of over four years between the two assaults.
 Indeed, in the intervening four years, defendant moved from New York to
 Vermont and apparently had started a new life.  There is no evidence of acts
 of sexual misconduct between the events,(FN3) nor a showing of lack of
 opportunity.  In similar circumstances, other courts have found the
 uncharged misconduct evidence too remote.  See State v. Miller, 821 S.W.2d 553, 555 (Mo. Ct. App. 1991) (two instances involving solicitation for
 prostitution of minor eight and four years prior to current charged offense
 "fail to reflect a series or sequence of acts toward the accomplishment of
 an overall objective"); State v. Lewis, 583 N.E.2d 404, 408 (Ohio Ct. App.
 1990) (evidence of rape committed four years previously "too temporally
 remote"); State v. Cox, 787 P.2d 4, 6 (Utah Ct. App. 1990) (two years is
 too long when there is no apparent connection between two sexual assaults).
 We agree with the trial court that the evidence of defendant's assault on
 S.M. was too remote to be admitted as a plan.

 

      The real import of the trial court's distinction between a common
 scheme and a plan appears to be in its view that the uncharged misconduct
 and the charged conduct were so similar that evidence of the uncharged
 misconduct could be admitted to show a common scheme despite its temporal
 remoteness.(FN4) Although modus operandi is normally used to show identity, see
 Imwinkelried, Uncharged Misconduct Evidence, supra, { 3:10, at 3-21, some
 courts have held that a showing of modus operandi can go to other issues in
 the case.  Indeed, some courts have held that modus operandi evidence is
 admissible when the issue in dispute is whether the victim consented to the
 sexual activity.  See State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988);
 Youngblood v. Sullivan, 628 P.2d 400, 402 (Or. Ct. App.), review denied, 634 P.2d 1347 (Or. 1981).  We need not determine whether a modus operandi theory
 might be applicable here because the similarity between the uncharged
 misconduct and the charged conduct is not sufficient to show a modus
 operandi.
      In modus operandi cases, the "'pattern and characteristics' of the
 prior act must be so distinctive, in effect, to constitute the defendant's
 signature."  Bruyette, 158 Vt. at 27, 604 A.2d  at 1273 (quoting State v.
 Hall, 697 P.2d 597, 600 (Wash. Ct. App. 1985)).  The analysis focuses on the
 similarity between the uncharged act and the charged act looking for a "few
 common features that are unique . . . [or] a larger number of them, less
 remarkable."  Id. at 28, 604 A.2d  at 1273.  In making this kind of

 

 comparison we must look at both the similarities and the dissimilarities.
 See Peek v. State, 488 So. 2d 52, 55 (Fla. 1986); State v. Pratt, 785 P.2d 350, 356 (Or. 1990).
      We agree with the trial court that there are enough similarities to
 meet the Catsam test.  See 148 Vt. at 382, 534 A.2d  at 194 ("similarity
 between the prior acts and the crime charged" is crucial factor to establish
 plan).  There are not, however, unique features in this case; moreover,
 similarities coexist with dissimilarities.  We must look at the similarities
 between the prior bad act and the charged offense in relation to the issues
 in the case.  Here, the issue is whether the victim consented to the sexual
 activity.  Most of the similarities in this case are consistent with both
 defendant's and the victim's version of events.  For example, defendant's
 use of oral sex is consistent with either consensual or nonconsensual
 activity; his sexual comments could be considered an approach for consensual
 sex.
      We would also give particular weight to connections between events.
 For example, the State responds to the difference in setting and victim age
 by arguing that in each case defendant was in a position of power over the
 victim.  That argument would better support the State's theory if the State
 had showed that defendant reached a position of power that then enabled him
 to have sexual relations with women.  There was no such showing here.
      We conclude that the evidence of the sexual assault on S.M. was not
 admissible to show either motive or common scheme.  Accordingly, its
 admission violated Rule 404(b).
      As noted earlier, assuming that the proffered evidence meets the
 requirements of Rule 404(b), the evidence must also pass the Rule 403

 

 balancing test, in which the probative value of the evidence is compared to
 any unfair prejudicial effect.  That balancing is highly discretionary.  See
 Parker, 149 Vt. at 401, 545 A.2d  at 517.  The trial court performed the
 balancing here, determining there was a need for the evidence because the
 complaining witness had "inherent credibility problems as she was a
 resident of a group home for the mentally ill."
      As we have expressed in other decisions, the potential unfair prejudice
 to the defendant is great from evidence of a past unpunished crime that is
 similar to that for which he is charged.  See Forbes, 4 Vt. L.W. at 309
 (such evidence changes calculus of probabilities used by jury and can tip
 balance against defendant); State v. McCarthy, 156 Vt. 148, 158, 589 A.2d 869, 875 (1991) (uncharged misconduct evidence showing past unpunished sex
 crime is most prejudicial evidence imaginable and was "incendiary" in this
 case); Catsam, 148 Vt. at 383, 534 A.2d  at 195 ("no potentially more
 inflammable evidence" can be discerned).  That high potential for unfair
 prejudice was present here.
      In cases in which such high potential for prejudice exists, we have
 often noted a related high probative value.  See Bruyette, 158 Vt. at 31,
 604 A.2d  at 1275 (evidence was "highly probative on the issue of identity");
 Parker, 149 Vt. at 402-03, 545 A.2d  at 518 (probative value "was highly
 significant in its tendency" both to establish motive, opportunity, intent,
 preparation and plan, as well as to rebut defendant's characterization of
 himself).  In this case, however, the probative value of the uncharged
 misconduct evidence is weak.  Even accounting for the court's wide
 discretion, we conclude that probative value was substantially outweighed by
 the danger of unfair prejudice.

 

      The trial court emphasized the need for the evidence because of the
 victim's situation.  We agree that the State's need for the evidence is a
 major factor in the balancing process.  See Catsam, 148 Vt. at 383, 534 A.2d 
 at 195 (State's need to present evidence of prior sexual contact with victim
 important in light of traditionally sparse direct evidence of child sexual
 assault).  However, the court ruled on the motion in limine without hearing
 and without knowing what evidence was available to the State to prove its
 case.  Because of the presence of others in the building on the nights in
 question, the State had available "substantial evidence, aside from the
 victim's testimony" to meet its burden.  Id.  We do not believe that the
 fact the victim was serving a house arrest sentence by itself shows that the
 State needed the evidence.
      There is a final factor that was not considered by the trial court  --
 that is, how definitely the State has proved defendant's commission of the
 uncharged misconduct.  See Imwinkelried, Uncharged Misconduct Evidence,
 supra, at { 8.04, at 8-10 to -11.  The record indicates that S.M. reported
 to the police her allegation of defendant's sexual assaults upon her, but he
 was not criminally charged for them.  Defendant was charged with providing
 alcoholic beverages to S.M., who was then a minor.
      We have adopted the rule of Huddleston v. United States, 485 U.S. 681,
 690 (1988) that admits uncharged misconduct evidence when the jury could
 find that the uncharged misconduct has occurred by a preponderance of the
 evidence.  See State v. Robinson, 158 Vt. 286, 290, 611 A.2d 852, 854
 (1992).  The court is not required, under any standard of proof, to make a
 preliminary determination that the misconduct occurred or that the evidence
 of its occurrence meets a higher-than-normal standard of proof.  Many states

 

 have rejected Huddleston and imposed a higher burden on the State to prove
 the uncharged misconduct occurred as a prerequisite to admission of the
 evidence.  See Getz, 538 A.2d  at 734 (proof must be "plain, clear and
 conclusive") (quoting Renzi v. State, 320 A.2d 711, 712 (Del. Super. Ct.
 1974)); Ture v. State, 353 N.W.2d 518, 521 (Minn. 1984) (evidence must be
 "clear and convincing").
      Our adoption of a low threshold for admission requires the trial court
 to look at the strength of the proof of the uncharged misconduct evidence in
 balancing under Rule 403.  We have expressed concern about the use of
 uncharged misconduct evidence when the record shows, as here, that there
 was an official investigation of the allegation and "insufficient evidence
 was found to pursue it."  McCarthy, 156 Vt. at 155, 589 A.2d  at 873.  The
 State must be required to show why an allegation that was found
 insufficiently credible for criminal prosecution at the time should now be
 considered credible to put before the jury.  The failure to make such a
 showing must weigh against admission.
      The State has not claimed that the admission of the testimony of S.M.
 was harmless.  In view of the jury's split verdict, we cannot say it was
 harmless.
      Reversed and remanded.



                                    FOR THE COURT:



                                    _____________________________
                                    Associate Justice




-------------------------------------------------------------------------------
                                 Footnotes


FN1.    One author argues that this Court followed a lustful disposition
 rule at common law in statutory rape cases, and has generally adopted a
 lustful disposition exception since enactment of Rule 404(b).  See Reed,
 Reading Gaol Revisited: Admission of Uncharged Misconduct Evidence in Sex
 Offender Cases, 21 Am. J. Crim. L. 127, 170 & n.238, 188 n.340 (1993).  His
 argument that we followed such a rule at common law is based on a two
 sentence discussion in State v. Willett, 78 Vt. 157, 159, 62 A. 48, 49
 (1905) to the effect that evidence of other acts of adultery is admissible
 in adultery prosecutions and this rule "must be applicable in a prosecution
 for statutory rape."  The statement is dictum, and no authority is cited to
 support this rule.  At best, it is a common law antecedent of the holding of
 State v. Forbes, discussed in the text infra.
     His argument with respect to our post-Rule 404(b) jurisprudence is
 based entirely on State v. Cardinal, 155 Vt. 411, 584 A.2d 1152 (1990), in
 which the defendant was charged with sexually assaulting his seventeen-year-
 old daughter.  We upheld the admission evidence of defendant's violent
 actions with respect to the victim's fiancé because it showed "defendant had
 a proprietary sexual interest in the victim, his actions being consistent
 with those of a jealous lover."  Id. at 415, 584 A.2d  at 1155.  This is not
 propensity evidence; defendant's jealous actions corroborated the victim's
 story without relying on defendant's character.


FN2.    The State has not asked us to examine other possible grounds for
admission, and we have not done so.  We believe a shift of grounds would be
particularly inappropriate in this case in which the trial court carefully
explained to the jury the permissible uses of the uncharged misconduct
evidence, and we have concluded each of those uses was in error.


FN3.    The State originally noticed that it intended to show that defendant
 sexually abused H.D., a sixteen-year-old friend of S.M., at his home also in
 August 1987.  This evidence was not offered at trial.


FN4.   In view of our analysis, we need not decide whether temporal
 remoteness defeats the use of modus operandi to admit uncharged misconduct
 evidence.  Cf. Imwinkelried, Uncharged Misconduct Evidence, supra, { 3:11,
 at 3-23 to -24 (in determining whether requisite showing of high degree of
 similarity between charged and uncharged crimes made to demonstrate modus
 operandi, courts normally consider three factors: temporal, and to lesser
 degree, geographic proximity, and resemblance of methodologies).