State v. Lawton

STATE_V_LAWTON.93-098; 164 Vt 179; 667 A.2d 50

[Filed 01-Sep-1995]

       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. 93-098


State of Vermont                                  Supreme Court

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

Robert Lawton                                      September Term, 1994



George T. Costes, J.

       Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, appellate counsel for plaintiff-appellee

       James W. Murdoch, Kurt M. Hughes and Heather Rylant, Legal Assistant
  (On the Brief), of Murdoch & Hughes, Burlington, for defendant-appellant


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


       JOHNSON, J.  Rarely are we compelled to reverse a verdict of guilty
  because the trial judge failed to control an overzealous prosecutor, but
  this is such a case.  The improper admission of numerous bad acts allegedly
  committed by defendant, punctuated with improper prosecutorial comments
  about defendant's character, were potentially so damaging that we cannot
  conclude that the verdict against defendant was untainted by such evidence.

       Defendant was charged with three counts of sexual assault on his three
  sons, G.L., aged seven years, D.L., aged five years, and B.L., aged three
  years.  The State alleged the offenses took place between January 1990 and
  February 1991 while defendant lived with his family in Williston, Vermont. 
  All three boys testified at trial, but B.L., the youngest, was unwilling to
  talk about what had happened to him.  B.L.'s story was told through his
  mother and the police officer who interviewed him.  Although B.L.'s story
  was less specific than the older children's description, the gist of the
  children's stories was that defendant had sodomized them on several

 

  occasions.

       The children's description of the sexual conduct was consistent with
  the findings of Dr. Paul Young, the State's medical expert, who had
  examined the boys and found physical abnormalities consistent with a
  history of rectal penetration by an object the size of an adult penis. 
  Although the physical examination of the boys revealed a difference in
  severity of abnormality, Dr. Young concluded that the most likely
  explanation for the rectal injuries in all three boys was "sexual abuse,
  repeated sodomy, anal intercourse."

       Defendant testified in his own defense.  His theory of the case was
  that his wife had accused him of sexual abuse of the children in
  retaliation for an affair he was conducting with another woman, and that
  his wife had coerced the children to testify.  He presented expert
  testimony contending that the children had been improperly manipulated by
  various interviewers. His explanation for the physical evidence found by
  Dr. Young was that the children were engaging in sexualized play with each
  other and with children in the neighborhood.

       The central issues for the jury, then, should have been the children's
  credibility and the reliability of B.L.'s account of the abuse, as related
  through his mother and the police officer, the persuasiveness of the
  medical and other expert testimony, and defendant's credibility.  The
  State, however, shifted the focus of the trial to defendant's character. 
  Thus, we first discuss defendant's two related assignments of error, that
  the admission of numerous bad acts combined with improper prosecutorial
  commentary deprived him of a fair trial.

                                     I.

       In criminal cases, prosecutors have a duty to obtain convictions
  "earnestly and vigorously through legitimate means and methods."  State v.
  Verrinder, 161 Vt. 250, 261, 637 A.2d 1382, 1389 (1993).  They also have a
  "corresponding duty to refrain from improper methods calculated to produce
  a wrongful conviction and to guard against conduct unintentionally
  trespassing the bounds of propriety."  State v. Lapham, 135 Vt. 393, 406,
  377 A.2d 249, 257 (1977).  A prosecutor must avoid appealing to the
  prejudices of the jury or relying on improperly drawn

 

inferences.  Id.

       Prosecutors are not without guidelines as to what is fair play in the
  context of a criminal trial.  At a minimum, they must make a good faith
  effort to comply with the Vermont Rules of Evidence.  The Rules provide
  that evidence of prior bad acts may not be admitted "to prove the character
  of a person in order to show that he acted in conformity therewith." 
  V.R.E. 404(b); State v. Jones, 160 Vt. 440, 444, 631 A.2d 840, 844 (1993). 
  When used to show character, admission of prior bad acts presents a
  significant danger of unfair prejudice and confusion, creating the distinct
  possibility that the jury will convict a defendant of the charged crime
  solely because he has committed other crimes or acts.  State v. Bruyette,
  158 Vt. 21, 27, 604 A.2d 1270, 1272 (1992).  Such evidence may be
  introduced only if it is relevant to some other legitimate issue in the
  case, such as motive, plan or identity.  V.R.E. 404(b); State v. Winter,
  ____ Vt. ____, ____, 648 A.2d 624, 626 (1994).  Even if relevant, however,
  the evidence may be excluded if its probative value is substantially
  outweighed by the danger of unfair prejudice. V.R.E. 403; State v. Ashley,
  160 Vt. 125, 126, 623 A.2d 984, 985 (1993).  On appeal, we will reverse the
  trial court's decision to admit this evidence only if the court withheld or
  abused its discretion and the error was not harmless.  State v. Kelley, 6
  Vt. L.W. 84, 85 (1995).

                                    A.

       The principal ground for reversal in this case lies in the
  prosecutor's cross-examination of defendant.  It is replete with prior bad
  acts and improper commentary designed to compel the jury's conclusion that
  defendant was a person of bad character.  The intended inference was that a
  person of such character is likely to  have committed the acts charged and
  should be convicted. All of the acts introduced were highly prejudicial and
  of marginal or no relevance to the factual issues before the jury.

       The prosecutor questioned defendant about having anal intercourse with
  his wife, and asked whether he enjoyed anal intercourse.  She asked him if
  he had been caught in a compromising position with another man, which she
  described, implying that defendant had

 

  engaged in homosexual acts.  She then questioned defendant about how
  much he liked to have sex and proceeded through a laundry list of names of
  adults with whom he had allegedly had sexual relations.  She asked if
  defendant had been drunk and on drugs when his daughter was born, implying
  that he was unable to go to his daughter's birth because he was under the
  influence.  She asked whether defendant was in bed with another woman when
  his wife returned home from the hospital after the birth.

       The State makes various attempts to justify the admission of these
  incidents.  It argues that evidence regarding anal intercourse with
  defendant's wife should be admitted because it is probative of defendant's
  specific method of performing anal sex -- digital penetration as a prelude
  to anal intercourse -- to identify defendant as the children's abuser. 
  Such evidence, however, "must be so distinctive, in effect, [as] to
  constitute the defendant's signature." Bruyette, 158 Vt. at 27, 604 A.2d  at
  1273 (1992).  We do not believe that the evidence in this case satisfies
  the high threshold established in Bruyette, and the evidence was relevant
  to no other purpose.

       In the same vein, the prosecutor attempted to ask defendant about
  whether he had been caught engaging in anal intercourse with an adult male
  friend.  Although the prosecutor then withdrew the question, the damage was
  done.  The judge did not instruct the jury to disregard the question.  The
  implication was before the jury and, because defendant did not have the
  opportunity to answer the question and there was no instruction to
  disregard the question, there was potential prejudice to defendant by
  implying an allegation of homosexuality.  See United States v. Schwab, 886 F.2d 509, 513 (2d Cir. 1989) (questions themselves may be prejudicial if
  intended solely to place improper matters before jury), cert. denied, 493 U.S. 1080 (1990).


       The State argues that defendant opened the door on the evidence about
  defendant's many extramarital affairs and defendant's alcohol and drug use
  because, in his opening statement, he mentioned that the couple had lived
  the "California lifestyle," which included the use of alcohol

 

  and drugs.  The State argues an overly broad position on the open door
  policy.  See State v. Recor, 150 Vt. 40, 44, 549 A.2d 1382, 1386 (1988)
  (Rule 404(b) not license "for the prosecutor to engage in `overkill'
  nominally justified by the defendant's actions in raising a line of
  questions").  While we agree that defendant initially raised these issues,
  this did not give the State license to introduce additional evidence on the
  same matters unless it was intended to contradict or rebut the testimony of
  defendant.  See id. at 44, 549 A.2d  at 1386 (evidence of prior assault on
  same victim properly admitted after defendant tried to impeach victim with
  incomplete picture of unwarranted bias); United States v. Beverly, 5 F.3d 633, 640 (2d Cir. 1993) (evidence of prior shootings properly admitted to
  rebut defendant's testimony that he was unfamiliar with use of guns);
  United States v. Carter, 953 F.2d 1449, 1456-57 (5th Cir.), cert. denied,
  504 U.S. 990 (1992) (defendant's prior conviction and time served
  admissible to rebut defendant's claim of continuous employment).  Instead,
  the State improperly used the prior bad acts as cumulative evidence of
  defendant's propensities.

       The prosecutor also made inappropriate comments during the
  cross-examination by interjecting her personal opinion of defendant's
  character and credibility.  She commented that defendant "had a lot of
  practice lying."  She stated, "Funny how everywhere you go, children,
  especially young boys, start sexually acting out."  When defendant stated
  he did not have time for extramarital affairs, she retorted that he was
  meeting his sexual needs at home.  Finally, the prosecutor ended her
  questioning with the statement, "I think that there's one statement that
  you made that's true, that even if you were guilty, you'd deny it until
  your dying day."

       Prosecutors may not indicate a personal belief that defendant is
  guilty because there is a great risk that the jury will give special weight
  to their opinion.  State v. Ayers, 148 Vt. 421, 425, 535 A.2d 330, 333
  (1987); see also Code of Professional Responsibility DR 7-106(C)(4) (lawyer
  shall not assert personal opinion as to witness's credibility or
  defendant's guilt). Whether improper comment by the prosecutor requires
  reversal depends on such factors as the blatancy of the expression, the
  impact on the theory of the defense, persistence and frequency

 

  of expression, the opportunity and potential for the court to minimize
  prejudicial impact, and the motivation for making the remarks.  State v.
  Francis, 151 Vt. 296, 299, 561 A.2d 392, 394 (1989).

       Here, the prosecutor went far beyond the bounds of propriety. The
  statements were blatant, persistent, and uncorrected by the court.   In
  particular, the prosecutor's closing comment at the end of the
  cross-examination came at a critical moment in the trial when the jury,
  having just heard defendant's testimony, was in the best position to judge
  his credibility. It was not a "spontaneous and inadvertent slip."  State v.
  Hamlin, 146 Vt. 97, 103, 499 A.2d 45, 50 (1985). The comment had a "studied
  purpose," Lapham, 135 Vt. at 407, 377 A.2d  at 407, intending to inject a
  highly prejudicial remark at a crucial point of the trial.

       Defendant objected to some, but not all, of the acts and commentary
  discussed.  Even where defendant has failed to preserve an issue, we may
  still reverse if the error is plain.  "We will find plain error  to warrant
  reversal of criminal conviction, absent preservation, only in rare and
  extraordinary cases where the error so affects the substantial rights of
  the defendant that we cannot find the overall trial to be fair."  State v.
  McCarthy, 156 Vt. 148, 154, 589 A.2d 869, 873 (1991); see V.R. Cr. P.
  52(b).  Taken together, the errors discussed are sufficient to support a
  finding of plain error.

                                    B.

       One particularly prejudicial prior bad act, first presented in the
  State's direct case, and reappearing on cross-examination and closing
  argument, deserves discussion.  It was an incident that was brought to
  light by the testimony of the mother's counselor, Mark Williams, in which
  he related that the mother had told him that her brother-in-law had walked
  into defendant's house in California and had seen him sitting in a circle
  of children with an exposed erection.  When Williams heard this, he advised
  the mother that, if it were true, he had an obligation to report the matter
  to the Department of Social and Rehabilitative Services (SRS).  The mother
  then notified SRS herself and obtained a relief-from-abuse order.  The
  evidence was admitted over

 

  defendant's objection because the court found that it was not admitted
  for the truth of the matter asserted, but to form a basis for the witness's
  further testimony.  The court then gave a limiting instruction to the jury.

       The State argues that the evidence was necessary to rebut defendant's
  theory of the case, that the mother had fabricated the charges against him
  after the discovery of his affair with another woman.  It contends that the
  mother acted to avoid having a third party report the information;
  therefore, it was necessary to show why the counselor intended to act.

       The basis of the counselor's testimony was a thin reed upon which to
  admit the evidence. Defendant did not dispute that the counselor was behind
  the mother's report to SRS.  Indeed, it was part of defendant's theory of
  the case that the alleged abuse was a figment of the counselor's
  imagination, so the evidence was not critical to the State's case.   When
  viewed in light of Rule 403 considerations, the prejudicial value of the
  evidence substantially outweighed its probative value.(FN1)

       The evidence was highly prejudicial because it reflected uncharged
  conduct similar to the allegations being tried, and invited the jury to
  convict on alleged crimes for which defendant had escaped punishment,
  precisely the result that Rule 404(b) is designed to prevent.  See United
  States v. Williams, 985 F.2d 634, 637-38 (1st Cir. 1993) (evidence of
  uncharged, unrelated murder was not relevant to plan of intimidation or
  modus operandi and was improperly admitted solely to show propensity).  The
  record is devoid of an effort by the trial judge to balance the probative
  value versus prejudicial effect of this evidence.  It was an abuse of
  discretion to admit it, even with the limiting instruction that it was not
  to be considered as true.

       The prosecutor then confronted defendant with the incident on
  cross-examination for an improper reason.  Defendant was asked on direct
  examination to relate when he first became

 

  aware that his wife had accused him of sexually abusing the children. 
  His response was that he became aware of it when he read "three mild
  accusations" in the temporary restraining order (TRO).  He did not state
  what the accusations were.  The State then confronted defendant with the
  "fourth" allegation, and read a description of the incident from the TRO.

       The State argues that it was entitled to correct the impression
  created by defendant in his direct testimony that there were only three
  allegations of child abuse in the TRO, rather than four.  But the issue on
  direct was not the contents of the TRO.  It was the time at which defendant
  first became aware of his wife's accusations.  In this context, the number
  of accusations or the exact nature of those accusations was irrelevant. 
  Even if clarification were required on the number of accusations, it was
  not required on content.

       In her closing argument, the prosecutor gratuitously referred to the
  incident in the context of discussing defendant's opportunities to commit
  child sexual abuse in California because the family's house was in a remote
  location.  The incident related by the brother-in-law was presented as
  proof of opportunity.  Again, the evidence had no relation to the charges
  before the court other than to prove that defendant had a propensity to
  commit child sexual abuse.(FN2)

       By the end of the trial, the jury had heard three references to a
  highly damaging piece of evidence that defendant had not been asked to
  admit or deny, and which was subject to a limiting instruction that the
  jury was not to consider the incident as having happened.  When it was
  presented as fact by the prosecutor in closing argument, it is difficult to
  believe that any jury could have understood what use it should make of the
  evidence, creating the danger that it was used for an improper purpose.

                              C.

 

       Although the prosecutor intentionally engaged in conduct that diverted
  the jury's attention from the issues before the court, she was not able to
  accomplish this without the assistance of the trial judge.  It is
  ultimately the trial court's responsibility to ensure that defendant is
  tried on the crime charged, not on his character or his alleged propensity
  to engage in criminal conduct.  Here, the court's repeated failure to
  exclude prior bad acts, to curtail the use of character evidence for
  improper purposes, and to curb the prosecutor's comments was an abuse of
  discretion.  We cannot say that the cumulative effect of the errors was
  harmless.  See Winter, ____ Vt. at ____, 648 A.2d  at 632 (admission of
  single, uncharged sexual assault in subsequent sexual assault prosecution
  was not harmless).

                                     II.

       We must also address defendant's claim that the trial court erred in
  denying his motion for judgment of acquittal on the charge involving B.L.,
  his youngest son.  B.L.'s testimony at trial was limited, and his story was
  told by his hearsay statements to his mother and to State Police Detective,
  Dane Shortsleeve.

       Defendant first argues that B.L.'s hearsay statements were
  inadmissible for failure of the court to comply with V.R.E. 804(a), leaving
  no testimony in the record on the elements of the offense other than B.L.'s
  statement that his father did something to him that he did not like to talk
  about.  Second, defendant contends that even if B.L.'s statements are
  admissible, there is no evidence to support an essential element of the
  crime charged, that is, contact between defendant's penis and the child's
  anus.  See 13 V.S.A. § 3251(1) (defining sexual act as conduct consisting
  of contact between penis and anus).

                                    A.

       Hearsay statements by a child ten years of age or younger may be
  admitted at trial if (1) the child is a putative victim of sexual assault
  and the statement relates to the crime; (2) the statements were not taken
  in preparation for a legal proceeding, and if a criminal proceeding has
  been initiated, the statements were made prior to the defendant's initial
  appearance before a

 

  judicial officer under V.R.Cr.P. 5; (3) the child is available to
  testify; and (4) the time, content and circumstances of the statements
  provide substantial indicia of trustworthiness.  V.R.E. 804a(a)(1)-(4). 
  Defendant does not contest that B.L. qualifies as a putative victim of
  sexual assault, but he does claim the court erred in its determination of
  the remaining three criteria under Rule 804a(a)(2)-(4).

       The hearsay statements admitted at trial arise from several different
  occasions, but we consider only B.L.'s statements to his mother because
  B.L.'s later disclosure to a police officer was no more revealing on the
  central issue than those already made.  On February 11, 1991, mother first
  spoke with B.L about inappropriate contact with his father.  She testified
  that B.L. told her D.L. and his father had touched his private parts and
  played "peepee races."  B.L. also told her that his father had bitten his
  butt and that one night he had woken up to find his father biting his butt
  and his pajamas wet.

       First, the court correctly found that the statements to the putative
  victim's mother were in response to her suspicions of abuse and not taken
  in preparation for legal proceedings.  B.L.'s disclosure was made within a
  few days of the issuance of a relief-from-abuse order.  No other legal
  proceeding was pending at the time of the disclosure.  Persons
  investigating the child abuse allegations were not involved with B.L. until
  after he had made disclosures to his mother.  We concur with the trial
  court's rejection of defendant's argument that because he was subject to a
  temporary relief-from-abuse order, all subsequent conversations were
  conducted in preparation for litigation.

       We have previously held that "statements made by putative victims
  during SRS's initial investigation into allegations of sexual abuse are not
  necessarily taken in preparation for a legal proceeding."  State v. Duffy,
  158 Vt. 170, 173, 605 A.2d 533, 535 (1992).  More recently, we held that a
  child's statements to a police officer, videotaped at a police station in
  the presence of an SRS caseworker, "were not `taken in preparation for
  litigation.'"  State v. Blackburn, ____ Vt. ____, ____, 643 A.2d 224, 226. 
  In Blackburn, we noted that interpreting Rule 804a(a)(2)

 

  too broadly would require "every factual inquiry" to be considered in
  preparation of litigation. Id. at ____, 643 A.2d  at 226.  We held that the
  proper inquiry under the Rule "is whether an objective view of the totality
  of the circumstances indicates that the statements were gathered primarily
  for reasons other than preparation for a legal proceeding."  Id. at ____,
  643 A.2d  at 226.  The statements made by B.L. to his mother were the result
  of the mother's first inquiries about sexual abuse.  Rule 804a(a)(2)
  embodies the concern that repeated interviews will be conducted by
  investigators until "nothing [is] left to do in preparation for trial."  
  Id. at ____, 643 A.2d  at 226.  A parent's initial, concerned questioning of
  a child is simply not the type of statement which Rule 804a(a)(2) is
  intended to exclude.

       Defendant next argues that B.L.'s refusal to discuss the incident on
  direct examination rendered him unavailable to testify, thereby violating
  Rule 804a(a)(3).  Although B.L. did not give detailed testimony concerning
  the alleged abuse, he did state that something had happened to him,
  involving his father, and that he did not like to talk about it.  In
  addition, he gave a detailed description of the Lawton house and the
  location of his bedroom.  He was available for cross-examination, though
  the defense chose not to exercise that right.

       In cases of child sexual abuse, limited testimony does not equal
  unavailability.  See In re M.B., 158 Vt. 63, 69, 605 A.2d 515, 518 (1992)
  (child sex abuse victim was available at CHINS hearing though she testified
  she could not remember what the person who had abused her had done). 
  Indeed, we noted in State v. Gallagher the likelihood that child victims of
  sexual crimes will be unable to deliver live testimony effectively.  150
  Vt. 341, 347, 554 A.2d 221, 225 (1988), cert. denied, 488 U.S. 995 (1988). 
  B.L.'s performance merely demonstrates the necessity for the Rule 804a
  hearsay exception.  Consequently, B.L. was available for purposes of Rule
  804a(a)(3).

       The final requirement imposed by Rule 804a(a) is that the hearsay
  statements have substantial indicia of trustworthiness.  Unless clearly
  erroneous, we will not reverse a court's determination on the
  trustworthiness of particular statements where the findings are supported

 

  by credible evidence.  Gallagher, 150 Vt. at 348, 554 A.2d  at 225
  (court found professionalism of interviews, internal consistency and detail
  of child's story, and child's affect, intelligence, memory and concern for
  truth supported trustworthiness of child victim's hearsay statements).

       The court's conclusions with respect to B.L.'s statement to his mother
  were not clearly erroneous because the disclosure was made in response to
  the first time the mother asked B.L. about any incidents involving his
  father.  See Reporter's Notes, V.R.E. 804a ("child-victim's early
  communications are often highly trustworthy").  Thus, B.L.'s statement was
  not the product of repeated interviewing, nor was any evidence of coercion
  or manipulation present. Given the circumstances, the statement was
  trustworthy.

       Finally, defendant alleges the trial court impermissibly relied on
  corroborating medical evidence in determining that the children's hearsay
  statements, including B.L.'s, were trustworthy.  He asserts that because
  hearsay statements are presumptively unreliable, the United States Supreme
  Court barred bootstrapping on the trustworthiness of corroborating medical
  evidence.  See Idaho v. Wright, 497 U.S. 805, 823-24 (1990) (rejecting
  admission of two-and-a-half-year old's hearsay statements through
  pediatrician).  While it is true the court alluded to the fact the
  children's statements were corroborated by a medical doctor, the court did
  so at the end of its findings and only after noting other indicia of
  trustworthiness.  We do not deem mere mention of corroboration clearly
  erroneous.

                                     B.

       The question remaining is whether B.L.'s hearsay statements were
  sufficient to establish the element of contact beyond a reasonable doubt.

       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. 
  Jones, 160 Vt. at 442-43, 631 A.2d at _____.  It is not necessary to show
  guilt by direct evidence and a criminal case may be proved wholly by
  circumstantial evidence alone.  State v. Messier, 146 Vt. 145, 150, 499 A.2d 32, 37 (1985).

 

  In Messier, we upheld a conviction of sexual assault even though no
  direct evidence of the sexual acts was adduced through testimony.  The
  eyewitness in Messier could testify only to the position of the bodies,
  from which the jury could draw the inference that the required contact had
  occurred.  Id., 499 A.2d  at 37.  In Jones, we affirmed a conviction for
  sexual assault on the basis of the testimony of a thirteen-year-old girl
  who testified to an attempt at penetration that hurt her.  Jones, 160 Vt.
  at 443, 631 A.2d  at 843.

       Under Jones and Messier, we conclude that there was sufficient
  evidence from which a jury could determine the element of contact beyond a
  reasonable doubt.  B.L. testified that his father did something to him that
  was hard to talk about, that he had talked about it with a police officer,
  and that it happened at home.  His mother testified that B.L. had told her
  that his father had touched his private parts, had rubbed his leg against
  B.L.'s leg, had touched his penis and bitten his "butt."  B.L. told her
  that he remembered a time when he woke up and his father was biting his
  butt and B.L.'s pajamas were wet.  She also related that B.L. complained to
  her that he had a sore bottom.

       Dr. Young, the pediatrician who examined all three boys, testified
  that B.L.'s physical condition was consistent with a history of rectal
  penetration, and that the best explanation for the physical condition of
  all three boys was that they had been the victims of sexual abuse.  He
  based his opinion in part on his discussion with the two older boys, who
  related some of the sexual events to them.  Dr. Young also testified that
  the physical findings were consistent with a penetrating object the size of
  an adult's, not a child's, penis.

       Defendant relies on two cases where the court found insufficient
  evidence of sexual assault.  See State v. Prime, 137 Vt. 340, 342, 403 A.2d 270, 271 (1979) (element of contact not established); State v. O'Neill, 589 A.2d 999, 1002-03 (N.H. 1991) (testimony that defendant "stuck his fingers
  in my bum" insufficient to support penetration of anus.)  The decision in
  Prime does not detail the testimony found to be insufficient and does not
  aid our analysis.  The decision from New Hampshire is not persuasive
  authority in light of our own decisions in Jones

 

  and Messier, and does not take into account that criminal cases may be
  proved by circumstantial evidence.  The motion for judgment of acquittal
  was properly denied.(FN3)

       Reversed and remanded for a new trial; denial of motion for judgment
  of acquittal affirmed.


                                        FOR THE COURT:



                                        ____________________________
                                        Associate Justice

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

FN1.   To the extent the State argues, in its brief, that this
  evidence is admissible to establish a scheme or plan of sexual molestation,
  State v. Catsam, 148 Vt. 366, 382, 534 A.2d 184, 194 (1987), we disagree. 
  The evidence was not offered at trial for that purpose.  It was offered to
  show the basis of the counselor's recommendation and to correct the number
  of accusations in the TRO.

FN2.   Although defendant raised numerous errors on appeal, we decline
  to reach the remaining issues and leave them for decision in the context of
  a new trial, in the event the State chooses to retry defendant.