State v. Sanders

State v. Sanders  (97-003); 168 Vt. 60; 716 A.2d 11

[Opinion Filed 24-Apr-1998]
[Motion for Reargument Denied 10-Jun-1998]

       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. 97-003


State of Vermont                             Supreme Court

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

Mark Sanders                                 February Term, 1998


Edward J. Cashman, J.

       William H. Sorrell, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, for Plaintiff-Appellee.

       Robert Appel, Defender General, and Henry Hinton, Appellate Attorney,
  Montpelier, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       MORSE, J.   Defendant appeals his jury conviction of aggravated
  domestic assault, 13 V.S.A. § 1043(a)(2), claiming that the court erred by
  (1) permitting the State to introduce "prior bad acts" evidence without
  giving defendant proper notice, (2) admitting evidence that defendant had
  assaulted the victim on prior occasions, and (3) allowing the State to
  question the victim about prior assaults after she recanted that they had
  occurred.  We affirm.

       The assault charge stemmed from a confrontation on March 31, 1996, in
  Burlington. The victim, defendant's live-in girlfriend, came home that
  evening with a friend, Jodi Bell.  She was surprised to find defendant home
  because he had told her earlier that day he was moving out due to problems
  in their relationship.  As the victim and her friend were getting ready to
  go out for the night, they heard defendant breaking glass and smashing
  things around the house. Frightened, the women locked themselves in the
  bathroom.  Bell then ran next door to call the police, and when she
  returned, she found defendant and the victim standing in the kitchen. 
  Bell,

 

  to protect the victim, inserted herself in between them.  Defendant then
  picked up a knife and said "someone is going to die . . . who's it gonna
  be?"  The State charged defendant with aggravated domestic assault for
  being armed with a deadly weapon and threatening to use that weapon on a
  household member.

       Over two months prior to trial, the State sent defense counsel a
  letter listing several "prior bad acts" they intended to introduce at
  trial.  Defendant brought a motion in limine to exclude the evidence, but
  the judge allowed the State to introduce two of the prior bad acts to go to
  the issue of intent.  The first was an incident that occurred on December
  30, 1995, in which the victim asked defendant to leave the apartment.  In
  response to her request, he choked her and threw her across the room,
  giving her a bloody nose.  The second was an incident that occurred on
  January 6, 1996, when defendant took victim's car without permission and
  screamed threats at her, saying he would never leave without a fight. 
  During trial, it was revealed that these incidents actually occurred on
  February 10, 1996, and February 18, 1996, respectively. However, on the
  stand, the victim recanted most of the substantive facts of these prior
  sworn statements.

       Defendant first argues that the court erred by permitting the State to
  introduce "prior bad acts" evidence without giving defendant proper notice. 
  V.R.Cr.P. 26(c) requires the State to furnish to defendant, at least seven
  days prior to trial, a written statement setting forth any evidence it
  intends to offer under V.R.E. 404(b) or V.R.E. 609.  Defendant argues that
  since the dates of the prior bad acts were wrong in the written statement,
  he did not receive sufficient notice under V.R.Cr.P. 26(c).

       The purpose of V.R.Cr.P. 26(c) is to "inform the defendant of crimes
  the State intends to introduce and allow the defendant time to respond by a
  motion in limine."  State v. Houle, 162 Vt. 41, 45, 642 A.2d 1178, ____
  (1994).  If defendant actually brings a motion in limine to exclude prior
  bad act evidence, he cannot then claim insufficient notice since the
  purpose of V.R.Cr.P. 26(c) has been met.  See State v. Kelley, 163 Vt. 325,
  330, 664 A.2d 708, ___

 
  
  (1995).  Here, the fact that the State had the wrong dates associated
  with the prior bad acts does not render the notice invalid since defendant
  was aware of the substance of the evidence and brought a motion in limine
  to exclude it.  The trial court did not err by permitting the state to
  introduce evidence of defendant's prior bad acts since the purpose of
  V.R.Cr.P. 26(c) was fulfilled.

       Defendant next argues that the court erred by admitting evidence that
  defendant had assaulted the victim on prior occasions.  Defendant claims
  that the State is merely using this evidence to show the defendant's
  propensity for criminal behavior, and therefore it should be excluded under
  V.R.E. 404(b) and 403.  The State argues that the evidence was offered to
  show why the victim was afraid of the defendant and to prove that the
  defendant had the requisite intent under 13 V.S.A. § 1043(a)(2) to
  "threaten" the victim with the knife.

       In reviewing the trial court's admission of evidence under 404(b), we
  must decide whether the evidence was both relevant and material to the
  subject cause of action, State v. Parker, 149 Vt. 393, 398, 545 A.2d 512,
  ___ (1988), and if so, whether the trial court abused its discretion in
  deciding that the introduction of such evidence was more probative than
  prejudicial under V.R.E. 403.  Id. at 400-01, 545 A.2d at ___ (1988).

       Here, we need not decide whether the prior bad acts may be admissible
  solely to show fear or intent because the evidence was relevant also to
  portray the history surrounding the abusive relationship, providing the
  needed context for the behavior in issue.  The purpose of establishing the
  defendant's history of abuse of the victim is not to show his general
  character for such abuse, but to provide the jury with an understanding of
  defendant's actions on the date in question.

       Allegations of a single act of domestic violence, taken out of its
  situational context, are likely to seem "incongruous and incredible" to a
  jury.  State v. Forbes, 161 Vt. 327, 331, 640 A.2d 13, __ (1994) (applying
  same rational to sexual abuse crimes).  Without knowing the history of the
  relationship between the defendant and the victim, jurors may not believe
  the

 

  victim was actually abused, since domestic violence is "learned, . . .
  controlling behavior aimed at gaining another's compliance" through
  multiple incidents.  Anderson v. Hensrud, 548 N.W.2d 410, 414 (N.D. 1996). 
  The prior occasions tend to prove that defendant meant to threaten and
  intimidate his friend when he raised the knife and said "someone is gonna
  die."  Therefore, the evidence was admissible.

       Previous incidents of domestic abuse are also relevant to put the
  victim's recantation of prior statements into context for the jury. 
  Victims of domestic abuse are likely to change their stories out of fear of
  retribution, or even out of misguided affection.  See State v. West, 164
  Vt. 192, ___, 667 A.2d 540, 543 (1995) (citing C. Klein & L. Orloff,
  Providing Legal Protection for Battered Women:  An Analysis of State
  Statutes and Case Law, 21 Hofstra L. Rev. 801, 1187 (1993)).  This prior
  history of abuse gives the jury an understanding of why the victim is less
  than candid in her testimony and allows them to more accurately decide
  which of the victim's statements more reliably reflect reality.

       These considerations, unique to domestic abuse situations, compel us
  to find that the trial court did not err by admitting the prior bad acts
  evidence under V.R.E. 404(b).  The trial court did not abuse its discretion
  in deciding that the introduction of such evidence was more probative than
  prejudicial under V.R.E. 403.

       Finally, defendant argues that the court erred by allowing the State
  to question the victim about statements she made concerning prior assaults
  by the defendant, which she later denied had occurred.  Defendant contends
  that it is error to bring prior crimes to a jury's attention unless there
  is sufficient evidence presented for the jury to reasonably conclude that
  the defendant committed those acts.  State v. Wheel, 155 Vt. 587, 603-04,
  587 A.2d 933, ___ (1990) (citing Huddleston v. U.S., 485 U.S. 681, 690
  (1988)).  Since the victim recanted most of the substance of her prior
  statements, defendant argues that there was not enough evidence for the
  jury to conclude that the prior assaults actually occurred and, therefore,
  the State should have been precluded from asking the victim about such
  prior abuse.

 

       However, defendant did not object to this issue at trial, and raised
  it for the first time in his motion for a new trial.  "The burden is on the
  defendant to bring the alleged error to the attention of the trial court in
  order that the error, if such, can be corrected without delay."  State v.
  Mecier, 138 Vt. 149, 156-57, 412 A.2d 291, 296 (1980).  Without an
  objection during trial, the "claims made in the motion for a new trial are
  waived for the purposes of appellate review." Id. at 157, 412 A.2d  at 296. 
  Therefore, defendant has not preserved this issue for appeal.

       Affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice