State v. Lund

STATE_V_LUND.94-284; 164 Vt 70; 664 A.2d 253

[Opinion Filed 16-Jun-1995]

[Motion for Reargument Denied 3-Aug-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. 94-284


State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont
                                                  Unit 3, Orange Circuit

Richard Lund                                      March Term, 1995



Shireen Avis Fisher, J.

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

Robert M. Paolini and Lauren Cleary, Law Clerk, of Martin & Paolini, Barre,
for defendant- appellant 


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


     GIBSON, J.     Defendant Richard Lund appeals his jury conviction in the
Orange District Court of one count of sexual assault on a minor, 13 V.S.A. 
3252(a)(3).  Defendant claims the trial court denied him his Sixth Amendment
right to confrontation by excluding evidence under Vermont's rape shield
statute.  Id.  3255. We affirm. 

     Complainant C.C. testified that she was sexually assaulted by defendant
in the summer of 1989 when she was six or seven years old. C.C. lived with
her family in a house next to her grandparents and defendant, her uncle.  On
the day of the assault, C.C.'s grandparents were caring for her at their
home.  At some point they left her alone with defendant so they could go 

  

to the store.  While they were gone, defendant suggested that C.C. take a nap
in the grandfather's "nap room."  C.C. complied, and shortly thereafter,
defendant sexually assaulted her. 

     Before trial, defendant filed a notice of intent to introduce evidence
of a previous sexual assault on C.C. by her grandfather pursuant to Vermont's
rape shield law, 13 V.S.A.  3255. Defendant asserted that C.C. had wrongly
accused him for an assault her grandfather had committed, and argued that he
needed to raise the issue of the earlier assault to impeach C.C.'s
credibility. Defendant contended that statements C.C. made to a therapist
during a taped interview were inconsistent with other statements she had made
and showed C.C.'s confusion over the two assaults.  Defendant noted that,
during the interview, C.C. stated she had told her mother about defendant's
attack when it occurred.  Although C.C. had disclosed her grandfather's
assault when she was three to her mother shortly after it happened, she did
not reveal defendant's assault until two years after it occurred.  In
addition, defendant pointed to C.C.'s statement that defendant had suggested
she nap in the grandfather's nap room prior to assaulting her.  C.C.'s
grandfather had apparently used the same pretext before he sexually assaulted
C.C. in the same room. 

     The trial court ruled that the evidence was not admissible under any of
the rape shield statute's three exceptions.  See id.  3255(a)(3)(A), (B)
and (C).  The court also concluded that the evidence was inadmissible in any
event because its limited probative value was substantially outweighed by its
private character and the risk of confusing the jury.  Defendant was
convicted, and he appeals. 

     Defendant claims that the trial court abused its discretion by denying
him an opportunity to cross-examine the complainant regarding the sexual
assault by her grandfather.   He contends 

  

that questioning C.C. on the similarities of the two assaults and the
inconsistencies of her statements was necessary to secure his right of
confrontation.  We disagree. 

     The Sixth Amendment affords a criminal defendant the right to confront
witnesses against him at trial.  State v. Patnaude, 140 Vt. 361, 369, 438 A.2d 402, 405 (1981).  The right is not absolute, however.  See State v.
Lavalette, 154 Vt. 426, 428, 578 A.2d 108, 110 (1990).  It may yield to other
legitimate interests at trial, id., and does not make evidence automatically
admissible.  Patnaude, 140 Vt. at 369, 438 A.2d  at 405.   All evidence,
including that offered for the purpose of confrontation, is first subject to
a balancing test for admissibility.  See V.R.E. 403.  Vermont's rape shield
statute is merely a specific application of the Rule 403 balancing test.  See
Patnaude, 140 Vt. at 377, 438 A.2d  at 409.  If the proffered evidence is
relevant and otherwise admissible under Rule 403, then the Confrontation
Clause may override the rape shield statute's prohibitions and the State's
interest in protecting the victim.  See id. at 369-70, 438 A.2d at 404-05;
see also Davis v. Alaska, 415 U.S. 308, 319 (1973) (defendant's right to
confrontation outweighs State's interest in protecting juvenile record of
state witness where record relevant to show witness's bias on
cross-examination).  Conversely, if the evidence is not relevant or is unduly
prejudicial, it is inadmissible and the Confrontation Clause may not be
invoked to change that result.  See Patnaude, 140 Vt. at 370, 438 A.2d  at
405.  The trial court has discretion in determining whether evidence is
relevant and admissible.  Lavalette, 154 Vt. at 428, 578 A.2d  at 109. 

     Defendant's proffered cross-examination was inadmissible under both the
rape shield statute and Rule 403; therefore, we need not balance the State's
interest against defendant's right to confrontation.  See Patnaude, 140 Vt.
at 370, 438 A.2d  at 405.  The proposed cross- examination would have had
little, if any, probative value while causing great trauma to the 

  

young complainant.(FN1)  The fact that C.C.'s prior victimization occurred in
the same "nap room" after having been put down for a nap is unremarkable
because both perpetrators were members of the same household.  Defendant has
not articulated any logical connection between the grandfather's assault when
C.C. was three and his claim that C.C. has wrongly accused him for the
assault at issue here. Nor has defendant shown that evidence of the prior
assault was necessary to effectively cross-examine the complainant.  Cf.
Davis, 415 U.S.  at 316-17 (exploring witness bias is always relevant and is
proper and important function of right of cross- examination); State v.
Catsam, 148 Vt. 366, 375 n.6, 534 A.2d 184, 190 n.6 (1987) (distinguishing
cases that permitted evidence of prior sexual conduct to prove bias and
capacity to contrive rape charge). 

     Defendant was permitted to test the complainant's truthfulness and
ability to recollect the event accurately by questioning her about alleged
inconsistencies in her statements regarding the assault.  Indeed, those
alleged inconsistencies were an important part of defendant's cross-
examination of the complainant.  The grandfather's assault four years
earlier, however, would have added little to C.C.'s testimony on
cross-examination.  The court recognized that there was no evidence that C.C.
was confused between defendant's and the grandfather's assaults.  C.C. had
distinguished the attacks in detail by describing the grandfather's assault
as oral contact and defendant's as intercourse.  The prior assault's minimal
probative value was clearly outweighed by the substantial invasion of C.C.'s
privacy and the likely emotional harm that such cross- 

  

examination would cause, see Catsam, 148 Vt. at 377, 534 A.2d  at 192, not to
mention the risk of confusing the issues for the jury. See V.R.E. 403;
Patnaude, 140 Vt. at 380, 438 A.2d  at 410. Accordingly, we hold that the
court did not violate defendant's right of confrontation because the court
correctly concluded that the prior assault was inadmissible.  Cf. State v.
French, 152 Vt. 72, 79-81, 564 A.2d 1058, 1062-63 (1989) (no confrontation
clause violation where defendant permitted to cross-examine witness on her
inconsistent recollection of facts and her motive for testifying, but not
permitted to cross-examine her about dropped criminal charge or unduly
prejudicial prior inconsistent statement). 

     Defendant also argues that the State "opened the door" to evidence of
the prior sexual assault by eliciting testimony concerning C.C.'s sexual
innocence.  The record shows that defendant never offered the evidence on
this ground, nor did he object when this issue was raised by the prosecution.
 Defendant's failure to make an offer of proof to permit the excluded
evidence on this basis at trial precludes us from reaching this issue on
appeal.  State v. Beckenbach, 136 Vt. 557, 561, 397 A.2d 79, 81 (1978). 

     Affirmed. 


                                   FOR THE COURT:



                                   _____________________________________
                                   Associate Justice




FN1.  Defendant alternatively argues that the automatic exclusion of evidence
under 13 V.S.A.  3255 because it does not fit into one of the three
statutory exceptions runs afoul of the Confrontation Clause and reversal in
his case is thus required.  To cure that deficiency, defendant suggests that
the court must balance the evidence's probative value against its prejudicial
impact.  In making this argument, defendant overlooks the fact that the trial
court in this case evaluated the probative value of the prior assault on C.C.
against its private character, and determined that the evidence was
inadmissible.