State v. Lipka

Annotate this Case

State v. Lipka (99-466); 174 Vt. 377; 817 A.2d 27

[Filed 01-Nov-2002]

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. 99-466

State of Vermont Supreme Court

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

Bernard R. Lipka November Term, 2000

Brian L. Burgess, J.

William H. Sorrell, Attorney General, and David Tartter, Assistant
Attorney General, Montpelier, for Plaintiff-Appellee.

Robert Appel, Defender General, and Anna Saxman, Appellate Attorney,
Montpelier, for Defendant-Appellant.

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

DOOLEY, J. Defendant Bernard Lipka appeals from a judgment of
conviction, based on a jury verdict, of two counts of sexual assault of a
minor in violation of 13 V.S.A. § 3252(a)(3), and one count of lewd and
lascivious conduct with a child in violation of 13 V.S.A. § 2602.
Defendant contends the trial court committed reversible error by: (1)
granting a special seating arrangement for a child witness in violation of
defendant's Sixth Amendment right to confrontation; (2) admitting evidence
of prior sexual misconduct; and 3) refusing to admit the videotape of
defendant's police interview. We agree with defendant's first claim of
error and find that the error was not harmless. We also agree that the
evidence of prior sexual misconduct was not admissible on the grounds
asserted by the State. Accordingly, we reverse and remand.

The sequence of events in the investigation and trial was as follows:
Defendant and J.C. became lovers in the early fall of 1997. J.C. lived in
an apartment in Burlington with her twin daughters, M.C. and K.C., who were
seven years old at the time. When an apartment below J.C.'s became vacant
later in the fall, defendant rented it. The girls were sometimes permitted
to visit defendant in his apartment, and defendant would occasionally
babysit for them.

On Halloween night 1997, J.C. refused to allow M.C. to go
trick-or-treating because she had gone to a friend's house after school
without permission. Defendant offered to watch M.C. while J.C. took her
other daughter trick-or-treating. J.C. testified that the next day, while
in defendant's car, she "heard the girls talking . . . about a shower."
When questioned, M.C. told her mother that she had taken a shower with
defendant. M.C. said there had been no inappropriate touching - she washed
defendant's back and he washed hers. J.C. asked defendant about the
incident that evening. According to J.C., defendant claimed that he and
M.C. may have passed each other while he was getting into the shower and
M.C. was getting out, or vice versa, but that they had not actually
showered together.

Following this conversation, J.C. did not permit defendant to be alone
with her children. She stopped seeing defendant romantically several days
after New Year's Eve 1998. The following July, J.C. heard one of her
daughters make a comment about "sucking on private parts." Describing
herself as "stunned," she talked with M.C. alone. As J.C. recalled, "I let
her know that she wasn't in trouble. . . . And she reluctantly told me
that they were talking about sucking on [defendant's] private parts. That
this was something that had happened."

A few days later, according to J.C., M.C. further revealed that sexual
contact had occurred between her and defendant on a number of occasions,
and that she and defendant "had taken pictures of their private parts."
M.C. told her mother that these events had occurred "when she was supposed

to be at the Boys & Girls Club." J.C. called the police to report the
allegations of sexual misconduct. As a result, M.C. was interviewed at an
office of the Department of Social and Rehabilitative Services (SRS) by an
SRS worker and a policeman, at which time she described her sexual activity
with defendant. (FN1)

M.C. stated in the interview that between the time defendant moved
into his apartment and July of 1998, she sucked on defendant's penis five
or six times, he placed his fingers in her vagina many times and she rubbed
his penis with her hands more than ten times, possibly as many as seventy
times. M.C. described an incident in which she and defendant showered
together: First, she played with defendant's penis outside the shower.
Then, she entered the shower while defendant was in it waiting for her.
They soaped each other, and she again played with his penis. M.C. also
recalled one occasion on which she and defendant took nude photographs of
each other in defendant's laundry room. She stated that the photograph she
took of defendant did not come out. M.C. also stated that she and
defendant had touched each other's private parts while they were lying on a
couch in her apartment with a blanket covering them, while her mother and
sister were in another room.

Defendant was later questioned by three police detectives, including
the officer who interviewed M.C. They talked for approximately one hour in
the detectives' vehicle. The detectives recorded the conversation without
defendant's knowledge. The officer who interviewed M.C. testified that
defendant denied having oral sex with M.C., but admitted that it was
possible that M.C.'s hand had accidentally touched his penis while she was
getting into his shower and he was getting out. Defendant also told the
detectives that he had gone to the store with M.C. to buy her

candy "before we took the shower." Defendant described another incident in
which he was playing with the girls when they allegedly pulled down his
pants and M.C. reached up and grabbed his penis. (FN2) Defendant denied
that he and M.C. had taken photographs of each other. A search warrant
executed that same day resulted in the discovery of an under-exposed
Polaroid photograph depicting a man wearing camouflaged pants, such as
those habitually worn by defendant, displaying his erect penis. (FN3)

The State charged defendant with three counts of sexual misconduct,
all involving M.C. and all involving conduct occurring between September
1997 and June 1998. The first two counts charged defendant with child
sexual abuse, a crime for which the maximum punishment is life in prison,
for (1) inserting his fingers in the vagina of M.C., and (2) bringing his
penis in contact with the mouth of M.C. The third count charged him with
lewd conduct with a child by having contact between the hand of M.C. and
the penis of defendant. Although this charge also involved a felony, the
maximum punishment was only five years in prison, far less than that of the
first two charges.

The State moved to introduce evidence of uncharged sexual conduct with
M.C. over the expanded time frame. The trial court granted the State's
motion, finding that the prior bad act evidence was "admissible to show the
'situational context' for the abuse of M.C. by her mother's boyfriend."

The State also moved to admit evidence that defendant had similar
sexual contact with his six-year-old daughter, R.L., and a third victim,
A.G., the seven-year-old daughter of another

girlfriend. (FN4) The court granted the motion in a written order,
finding that the evidence of defendant's prior bad acts was "clearly
relevant to the State's theory of the case, not only to show absence of
mistake, intent and motive, but also to demonstrate opportunity to commit
the offenses." The court noted that when interviewed by the police,
defendant "suggested that there might have been accidental sexual contact
between [him] and M.C. during a shower incident." Hence, the court found
that the prior bad act evidence was "directly related to a disputed issue
in the case" and "clearly bears on Defendant's claims of accident or
mistake." Additionally, the court found that "[t]he repetitive series of
sexual abuse of young girls in the same or similar settings shows a common
scheme or plan by Defendant and therefore is highly probative as to his
intent to commit the acts alleged."

The evidence consisted of the testimony of six persons: the officer
who interviewed M.C., J.C., defendant, R.L., R.L.'s mother (defendant's
ex-wife) and defendant's father. M.C. testified by video deposition, and a
videotape of her statement to the police officer and the SRS worker was
also admitted. The remaining exhibits consisted of the Polaroid camera, a
film box, the Polaroid photo described above, camouflaged pants, and the
search warrant under which the pants were obtained. M.C.'s description of
the incidents alleged in the charge was graphic and largely consistent with
her earlier statement.

Defendant testified at trial. He denied all of the sexual acts
alleged by M.C. He did not claim accident or lack of intent as a defense.
He did admit the contact as he left the shower on Halloween, but his
description of the shower incident was not remotely similar to the incident
described by M.C. Neither in his opening nor in his closing did
defendant's counsel argue that defendant committed any

of the acts alleged but did not have the criminal intent. Nothing in his
examination or cross-examination of witnesses supported such a claim.

Over objection, R.L. testified at trial. She described an incident
that occurred in her paternal grandparents' home about eighteen months
before the charged offenses in which defendant touched her vagina while
they were watching television with R.L.'s older brother. The court later
instructed the jury that R.L.'s testimony, if believed, was to be
considered "for a limited purpose only . . . that defendant is capable of
taking the chance of having a lewd contact with a child in the presence of
another person . . . [or] in determining whether any contact between the
Defendant's penis and [M.C.'s] hand was accidental or intentional on
Defendant's part." In connection with R.L.'s testimony, her mother,
defendant's former wife, testified that she learned about the incident when
R.L. disclosed it at the day care center, that the incident brought her in
contact with the police, and that, since the incident, defendant has had no
visitation with his daughter. Also, defendant's father testified that he
was in the room when the alleged touching occurred and did not see it
happen.

The jury returned a guilty verdict on all counts. Defendant's motion
for new trial was denied. This appeal followed.

Defendant first contends that his Sixth Amendment right to
confrontation was violated by a special seating arrangement at trial in
which R.L. was seated facing away from defendant during her testimony. We
discuss this issue briefly because the State has essentially conceded it,
briefing and arguing instead that the error was harmless.

The trial court granted the State's pretrial motion for the special
seating arrangement, noting that R.L. was nine years old, and that she had
not seen defendant since disclosing that he had

inappropriately touched her two years earlier. As described by defense
counsel in noting his objection, R.L. sat at a table placed in front of the
jury with her back to defendant. The prosecutor sat at the table facing
R.L. during questioning. Defense counsel was offered the same opportunity
to sit facing R.L., but chose not to cross-examine her.

Prior to R.L.'s testimony, the court instructed the jury that the
special seating arrangement had been made "because it's a child and we feel
the child would be more at ease if she's sitting [in] this kind of
configuration rather than sitting on the witness stand."

The United States Supreme Court has expressly held that the
Confrontation Clause "guarantees the defendant a face-to-face meeting with
witnesses appearing before the trier of fact," Coy v. Iowa, 487 U.S. 1012,
1016 (1988), but has also recognized that the right is "not absolute" and
"must occasionally give way to considerations of public policy and the
necessities of the case." Maryland v. Craig, 497 U.S. 836, 849-50 (1990)
(quoting Mattox v. United States, 156 U.S. 237, 243 (1895)). Accordingly,
the Court in Craig upheld Maryland's statutory procedure for receiving the
testimony of a child witness in a sexual molestation case by closed circuit
television, a procedure similar to that used to admit M.C.'s testimony in
this case under V.R.E. 807. The Supreme Court noted that the procedure
otherwise

preserve[d] all of the other elements of the confrontation right:
The child witness must be competent to testify and must testify
under oath; the defendant retains full opportunity for
contemporaneous cross-examination; and the judge, jury, and
defendant are able to view (albeit by video monitor) the demeanor
(and body) of the witness as he or she testifies.

Id. at 851. In so holding, the Court stressed the necessity of
"case-specific" findings that the special procedure is necessary to protect
the welfare of the particular child witness. Id. at 855. Without
purporting to define the minimum showing of emotional distress required for
such a procedure, the

Court nevertheless required a determination by the trial court that the
child witness would be traumatized by the presence of the defendant. Id.
at 856.

We agree with defendant that his right to confrontation as defined by
the Supreme Court in Craig was violated by the seating arrangement that
prevented defendant from seeing R.L. while she testified, as well as by the
trial court's failure to make adequate findings concerning the necessity of
such an arrangement. Although Craig approved the use of closed circuit
television to prevent a child witness from seeing the defendant, it
required - at a minimum - that defendant retain the opportunity "to view .
. . the demeanor (and body) of the witness as he or she testifies." Id. at
851; see also People v. Lofton, 740 N.E.2d 782, 794 (Ill. 2000)
(defendant's confrontation clause rights violated by barricade erected by
trial court that blocked child witness from defendant's view). The seating
arrangement devised by the trial court in this case indisputably deprived
defendant of the opportunity to observe the witness's demeanor during her
testimony, contrary to this requirement. (FN5) Furthermore, although the
State argued that the seating arrangement was necessary because R.L. had
not seen defendant since her allegations of misconduct several years
earlier, there was no specific evidence - or finding - that the seating
arrangement was necessary to prevent emotional distress or trauma to the
child witness. The court simply ruled that it would "permit the State to
proceed along those lines." This was plainly inadequate under Craig, which
requires specific and particularized findings of necessity. 497 U.S. at
855.

The State argues, however, that the error was harmless in view of the
strength of the State's case and the limited weight of R.L.'s testimony.
We can uphold a criminal conviction, despite a confrontation clause error,
if we find that the error was harmless beyond a reasonable doubt. See Coy,
487 U.S. at 1021; State v. Lynds, 158 Vt. 37, 42, 605 A.2d 501, 503 (1991).
The way the standard is to be applied is set out in Coy, the leading
decision of the United States Supreme Court:

An assessment of harmlessness cannot include consideration of
whether the witness' testimony would have been unchanged, or the
jury's assessment unaltered, had there been confrontation; such an
inquiry would obviously involve pure speculation, and harmlessness
must therefore be determined on the basis of the remaining
evidence.

Coy, 487 U.S. at 1021-22. As we said in Lynds, "[t]o determine whether the
error is harmless, we must posit a trial without any evidence by [the
witness who testified in violation of defendant's confrontation rights]."
Lynds, 158 Vt. at 42, 605 A.2d at 503.

Thus, the question before us is whether we can say beyond a reasonable
doubt that the jury would have convicted defendant if R.L. had never
testified. In considering this question, we must also ignore the testimony
of defendant's father and the testimony of defendant's ex-wife that R.L.'s
accusations brought her in contact with the police and resulted in
defendant never seeing R.L. again before the trial. We conclude that we
cannot say beyond a reasonable doubt that this evidence had no effect on
the jury's verdict.

The two most important factors in the harm equation we must employ are
the strength of the prosecution's case without the offending evidence and
the strength of the offending evidence. In approaching the first of these
factors, it is important to understand that it is not the role of this
Court to determine whether defendant is guilty. See Kotteakos v. United
States, 328 U.S. 750, 763 (1946). The main danger in our analysis of the
strength of the evidence in determining whether an error is

harmless was described by Chief Judge Harry Edwards of the United States
Court of Appeals for the District of Columbia Circuit:

The problem with harmless error arises when we as appellate judges
conflate the harmlessness inquiry with our own assessment of a
defendant's guilt. This approach is dangerously seductive, for
our natural inclination is to view an error as harmless whenever a
defendant's conviction appears well justified by the record
evidence. However, the seductiveness of this approach is its
chief defect, for, drawn in by its attractions, we have applied
the harmless-error rule to such an extent that it is my impression
that my colleagues and I are inclined to invoke it almost
automatically where the proof of a defendant's guilt seems strong.

H. Edwards, To Err is Human, But Not Always Harmless: When Should Legal
Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167, 1170 (1995). The issue before
us is what the jury might have done without the offending evidence, not
what we would do if we were the factfinder.

At base, this was a classic swearing contest. Both M.C. and defendant
testified. M.C. made detailed accusations. Defendant denied each of these
detailed accusations. There were discrepancies in the testimony of both,
and cross-examination pointed out these discrepancies. There was no
corroboration for M.C.'s accusations. Although she testified to many
incidents of sexual abuse - up to 100 or more, over an eight month period -
no one observed any of the incidents or even her presence in defendant's
apartment that enabled the incidents. Apparently, because she had not
observed any conduct incident to the alleged abuse, M.C.'s twin sister did
not testify.

The only event that emerged before M.C.'s detailed disclosures was the
"shower incident." Both M.C. and defendant described a shower incident,
but these descriptions were entirely different. M.C. testified that she
and defendant showered together with sexual activity occurring before and
during the shower. Defendant testified that he showered alone, and that
M.C. tried to enter the

shower as exited. In his description, there was no joint shower or sexual
activity; any touching was brief and accidental and occurred outside the
shower as he and M.C. passed each other.

Two pieces of evidence may have helped the State to support M.C.'s
story, but we cannot say that either was so strong as to determine our
conclusion. M.C. testified that she and defendant photographed each other
while they were nude, and the State offered a poor-quality Polaroid
photograph of defendant dressed in camouflaged pants with his penis
exposed. Defendant denied the photography incident and stated the picture
had been taken by M.C.'s mother, J.C. Defense counsel argued that the
photograph could not support M.C.'s testimony because defendant was not
nude in the photograph.

Perhaps the State's most probative supporting evidence was defendant's
answer to a question during the police interrogation that he took M.C. to a
store to buy candy "before we took the shower." This answer occurred,
however, during the questioning in which defendant consistently denied that
he and M.C. had showered together but agreed that each took a shower.
Thus, the State claims, and the defendant denies, that defendant admitted
that he and M.C. showered together despite his continuous denial of that
accusation.

Although these two pieces of evidence favored the State and the State
particularly focused on them during the trial, we cannot determine how the
jury viewed them. For each, defendant had a different explanation, one
inconsistent with his guilt.

We also note a consistency difficulty with the State's argument that
its case was so strong that the erroneous admission of R.L.'s testimony was
harmless beyond a reasonable doubt. As we discuss in detail infra, R.L.'s
testimony was prior bad act evidence admitted under V.R.E. 404(b) and found
to pass the balancing test of V.R.E. 403. To demonstrate conformance with
these rules, the State had to show a need for the prior bad act evidence.
See State v. Winter, 162 Vt. 388, 400, 648 A.2d 624, 631 (1994) (State's need for evidence of prior bad acts is major
factor in balancing process); State v. Catsam, 148 Vt. 366, 382-83, 534 A.2d 184, 195 (1987) (prosecution's duty is to demonstrate a need to
introduce evidence). It did so, in part, by arguing that the prior bad act
evidence was "highly probative" because there was no direct evidence of the
sexual abuse other than the victim's testimony and this Court had labeled
such testimony from a victim as not "entirely reliable." See State v.
Johnson, 158 Vt. 344, 353, 612 A.2d 1114, 1119 (1992) ("evidence of related
sexual acts against victims whose testimony is not considered entirely
reliable has substantial probative value"); see also State v. Sullivan, 576 N.W.2d 30, 41 (Wis. 1998) (admission of prior bad act evidence not harmless
where state conceded need for evidence in arguing for its admissibility).
Thus, the evidence that the State labeled as not entirely reliable to
persuade the court to admit R.L.'s testimony is now called overwhelming to
persuade us that the admission of R.L.'s testimony was harmless.

We have one particular precedent, State v. Lynds, that is helpful in
examining this first factor, the strength of the properly-admitted evidence
in support of the conviction. In Lynds, we reversed a conviction because
the trial court violated defendant's confrontation clause rights by
allowing admission of a deposition of an expert witness who testified
generally to issues of delayed reporting of child sexual abuse and family
dynamics, patterns and effects of such abuse. Lynds, 158 Vt. at 42, 605 A.2d at 504. The witness had never met the victim. The State's evidence
consisted of the testimony of the victim, who described in detail regular
sexual abuse by defendant over a four-year period, and the deposition of
the expert witness. The defendant testified that the alleged conduct had
not occurred, and his testimony was supported by three of the victim's
brothers, who testified that they had not observed the abuse although they
lived in the same house as defendant and the victim and the house lacked
privacy. Observing that "[t]he trial was a credibility contest between the

defendant and the victim with the defendant having the advantages of the
presumption of innocence, the State's high burden of proof and the
supporting testimony," we concluded that the error was not harmless. Id.
at 43-44, 605 A.2d at 503.

The only differences between this case and Lynds are the nature of the
erroneously-admitted evidence and the fact that supporting witnesses, to
the extent they existed, were part of the State's case here and the
defendant's case in Lynds. Given that the only direct evidence of the
sexual abuse came from M.C., we do not believe that the alignment of the
supporting witnesses can be determinative under the high standard for
harmless error. Consistent with Lynds, we must conclude that the first
harmless error factor does not support a conclusion that the error in
admitting R.L.'s testimony was harmless.

The second factor - the effect of the erroneously admitted evidence -
weighs heavier against finding harmless error. If we could view this
evidence only with respect to the logical relevance that supported its
admission, we could agree with the State that it had very limited probative
value. As we discuss below in regard to the admission of this evidence,
however, this was evidence of prior child sexual abuse with a high danger
of prejudicial impact on the deliberations of the jury. We said of such
evidence in State v. Catsam, 148 Vt. at 383, 534 A.2d at 195: "One can
think of no potentially more inflammatory evidence than similar prior
sexual contacts." We amplified this statement in State v. Forbes, 161 Vt.
327, 330, 640 A.2d 13, 15 (1993):

We must be vigilant in reviewing the admission of evidence of
uncharged misconduct, because once jurors learn of uncharged
misconduct, they tend to use an entirely "different . . . calculus
of probabilities" in deciding whether to convict. See
Imwinkelried, Uncharged Misconduct, 1986 A.B.A. Sec. Crim. J. 6, 8
(Summer) (quoting H. Kalven & H. Ziesel, The American Jury 179
(1966)). In fact, several empirical studies tend to confirm
prosecutors' beliefs that the introduction of a defendant's
uncharged misconduct can "easily tip the balance against the
defendant." Imwinkelried at 8 (referring

to studies conducted by the Chicago Jury Project, the London
School of Economics, and the National Science Foundation Law and
Social Science Project); see State v. McCarthy, 156 Vt. 148,
155?58, 589 A.2d 869, 873?75 (1991) (misconduct evidence can have
an "incendiary" impact on the jury).

The evidence in this case was particularly explosive and prejudicial
because the victim of defendant's prior sexual misconduct was his own
daughter. In State v. McCarthy, 156 Vt. 148, 155, 589 A.2d 869, 873 (1991)
we labeled evidence of uncharged misconduct as the "most prejudicial
evidence imaginable." (Quoting People v. Smallwood, 722 P.2d 197, 205
(Cal. 1986)). It is particularly telling that this Court has never before
found that improper admission of prior bad act evidence was harmless beyond
a reasonable doubt. (FN6)

We find our decision in McCarthy particularly relevant in our analysis
of this second harmless error factor. In McCarthy, the defendant was
charged with lewd and lascivious conduct with his daughter, and the jury
found him guilty. During the presentation of evidence, the prosecutor
showed that in the past the defendant had been investigated by the SRS for
having oral sex with his son. Defense counsel failed to object to this
evidence, which came in through numerous witnesses, and the question on
appeal was whether the admission of the prior bad act evidence was plain
error. We held that it was because of the highly prejudicial effect of
prior sexual misconduct evidence and the fact that "[t]he case could have
gone either way, depending upon whether the jury believed complainant
beyond a reasonable doubt or believed defendant, who testified, or could
not resolve

the conflict in the testimony to convict." McCarthy, 156 Vt. at 155, 157,
589 A.2d at 875. We summarized our holding as follows:

In summary, the court in this case erroneously admitted
evidence of another alleged sexual assault on another of
defendant's children, and the prosecution exploited the evidence
unfairly to suggest that defendant generally committed acts of
sexual misconduct on his children. In a case that depended
ultimately on the credibility of defendant and the complainant,
such evidence was incendiary. Because there is a substantial
likelihood that defendant was convicted by this incendiary device
and not by properly admitted evidence, we reverse.

Id. at 158, 589 A.2d at 875 (footnotes omitted).

It is very rare that we find plain error, and the burden to show it is
extremely high. See id. at 154, 589 A.2d at 873. Although the prosecutor
exploited the improper evidence to a much greater degree in McCarthy than
the prosecutor did here, the nature of the evidence and the case are
essentially the same. We cannot justify finding plain error because of
this evidence in one case and in a very similar case find any error is
harmless.

For the above reasons, we conclude that the two most significant
factors in a harmless error analysis weigh heavily against a conclusion
that the admission of R.L.'s testimony in this case was harmless error. We
cannot conclude beyond a reasonable doubt that the jury would still have
convicted defendant if it had never heard the testimony of R.L., her mother
and grandfather. We must, therefore, reverse defendant's convictions and
give him a new trial because of the confrontation clause violation in the
seating of R.L.

II.

Because the issues are likely to recur on retrial, we address
defendant's remaining issues on appeal. We start with defendant's argument
that the trial court erred in admitting R.L.'s testimony under V.R.E.
404(b). Consistent with our purpose in considering this issue, we address
the primary

grounds selected by the trial court for admitting the testimony - that
R.L.'s testimony shows that defendant's conduct with M.C. was not
accidental - recognizing that other grounds were raised during the course
of the argument on the motion in limine and at trial. (FN7)

Defendant contends the trial court erred in admitting R.L.'s testimony
because it did not relate to an element of the charged offenses or to his
defense at trial. He argues that he neither claimed accident, nor placed
his intent specifically at issue, and therefore the evidence was
inadmissible under V.R.E. 404(b). In reviewing the trial court's admission
of prior bad act evidence under Rule 404(b), we determine whether the
admitted evidence was relevant and material to the cause of action, and if
so, whether its admission was so prejudicial as to outweigh its probative

value. State v. Parker, 149 Vt. 393, 398, 545 A.2d 512, 515 (1988). "We
will reverse the trial court's decision to admit this evidence only if the
court withheld or abused its discretion . . . and a substantial right of
[the] defendant was affected by the alleged error." State v. Kelley, 163
Vt. 325, 328, 664 A.2d 708, 710 (1995) (internal citations omitted).

Vermont Rule of Evidence 404(b) provides:

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.

We have explained that Rule 404(b) "allows evidence of uncharged
misconduct for any purpose other than proving the defendant's bad
character." State v. Forbes, 161 Vt. 327, 332, 640 A.2d 13, 16 (1994). To
be admissible, however, prior bad act evidence must be relevant to "an
element of the offense or the defense that is genuinely in issue." State
v. Winter, 162 Vt. 388, 393, 648 A.2d 624, 627 (1994). "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." Id.

The State argues that absence of accident, or more generally
defendant's intent, was genuinely in issue for purposes of Winter because:
(a) a defendant's intent is always in issue because it is an element of the
State's proof once defendant pleads not guilty to the offense; and (b)
intent was specifically in issue in this case because defendant claimed in
his interview with the police that M.C.'s touching of his penis during the
shower incident was accidental. We conclude that the evidence did not meet
Winter's "genuinely in issue" requirement and reject both of the State's
rationales as to why it did.

We note at the outset that the State's first rationale would
essentially negate the general prohibition of Rule 404(b) that prior bad
act evidence is not admissible to show character or propensity. The
State's logic is (1) the prior bad act was intentional; (2) if the prior
bad act event was intentional, it is more likely that the charged similar
conduct is intentional; and (3) because the State must show intent as an
element of the offense, the evidence is relevant to an element genuinely in
issue. Since the State would not offer evidence of a prior bad act unless
it appeared to be intentional, the practical result of the acceptance of
the State's argument is that all prior bad act evidence is admissible if it
shows conduct similar to that involved in the charged offense.

The weakness in the State's argument is that, while intent is an
element of the offense, it is frequently not "genuinely in issue." Indeed,
if we were to accept the State's rationale, we would turn "genuinely in
issue" into "possibly in issue." The general rule on the question before
us is described in the leading treatise on prior bad act evidence:

In most of these cases, the defendant has implicitly conceded the
existence of the material fact. Suppose, for example, that the
defendant denies his identity as the criminal. By completely
denying identity or raising alibi, the defendant in effect admits
the mens rea of the perpetrators of the crime, at least when the
mental element is general mens rea. The prosecution's eyewitness
testimony usually describes a crime that was obviously committed
voluntarily. The jurors will readily infer the general mens rea
from the testimony, and mens rea is indisputed in the sense that
it is implicitly or practically conceded.

2 E. Imwinkelried, Uncharged Misconduct Evidence § 8:13, at 69 (1999).
Thus, in State v. Blackey, 623 A.2d 1331, 1333-34 (N.H. 1993), the Supreme
Court of New Hampshire held in a child physical abuse case in a day care
center that the State could not put in evidence of prior physical abuse of
other children at the day care center to show absence of accident where
defendant defended on the basis that she did not commit the alleged act.
Blackey is in accord with the majority of the decisions

on the point. See, e.g., Clark v. State, 953 P.2d 159, 162 (Alaska Ct.
App. 1998) (intent must be seriously disputed for prior bad act evidence to
be admissible); State v. Ives, 927 P.2d 762, 771 (Ariz. 1996) (prior bad
act evidence inadmissible where there was no genuine issue of whether
defendant accidentally molested victim); State v. Goodrich, 432 A.2d 413,
417 (Me. 1981)(where defendant alleged that rape did not occur, evidence of
other crimes not admissible to prove intent or identity); Emory v. State,
647 A.2d 1243, 1255-56 (Md. Ct. Spec. App. 1994) (prior bad act evidence
not relevant where defendant never claimed mistake); State v. Rogers, 992 P.2d 229, 235 (Mont. 1999) (prior bad act evidence of defendant's intent
irrelevant when only issue was victim's consent to sexual intercourse);
State v. G.V., 744 A.2d 137, 142 (N.J. 2000) (prior bad act evidence not
admissible where there was no genuinely disputed issue that intercourse
with child was result of accident or mistake); State v. Picklesimer, 1996
WL 599425, at *4 (Ohio Ct. App. 1996) (state cannot use other acts evidence
to negate accident or mistake when defendant has not raised that defense);
State v. Smith, 617 N.E.2d 1160, 1172 (Ohio Ct. App. 1992) (evidence of
other bad acts admissible to show mistake by defendant, not by state's
witnesses, and only if mistake is at issue); Blaylock v. Commonwealth, 496 S.E.2d 97, 103 (Va. Ct. App. 1998) (where defendant's intent genuinely
uncontested, probative value of prior bad act evidence outweighed by
prejudicial value).

Putting aside the shower incident for the moment, the Imwinkelried
rationale exactly fits the circumstances of this case. Defendant was
charged with inserting his fingers into the vagina of M.C., bringing his
penis in contact with the mouth of M.C., and causing contact between the
hand of M.C. and his penis. The charges are based on the testimony of M.C.
that these acts occurred up to 100 times or more from the fall of 1997
through the spring of 1998.

Defendant consistently denied these allegations, and his denial was
clear during the arguments on the motion in limine. He testified at trial
and denied all of the sexual acts alleged by

M.C. He did not claim accident, or lack of intent, as a defense. Neither
in his opening nor in his closing did defendant's counsel argue that
defendant committed any of the acts alleged but did not have the criminal
intent. Nothing in his examination or cross-examination of witnesses
supported such a claim. (FN8)

As Professor Imwinkelried explains, by relying on a defense that he
did not commit the acts, a defendant has "implicitly or practically
conceded" that he acted with criminal intent if the jury found that he did
commit the acts. Imwinkelried, supra, at 69. Certainly, no juror who
believes the events testified to by M.C. could conclude that the acts were
accidental. This case was about whether the acts occurred.

The State responds with its second argument, that defendant placed
intent in issue by claiming that the touching during the "shower incident"
was accidental. That argument might have some credence if defendant's
version of the shower incident bore any relation to the shower incident
described by M.C. In fact, the only element similar in their descriptions
is that both versions involved a shower. M.C. described the shower as a
part of sexual activity, preceded by her rubbing defendant's penis with
fondling of sex organs continuing in the shower. Defendant described brief
incidental contact occurring outside the shower as he left the shower and
M.C. entered it. Defendant

denied that there was any sexual contact before he took a shower and that
he and M.C. showered together, the central points of M.C.'s description.
(FN9)

The State argues this issue as primarily one of timing - that is, when
issues appear in the criminal investigation, the State must respond to them
even if they are not actually part of the trial. The State's argument
would make more sense in a case where the State had no idea what the
defense would be until defendant put on his evidence and under criminal
procedure rules that did not identify or narrow the issues. (FN10) Here,
the nature of the evidence and the actual issues in the trial were fully
explored in the hearing on the motion in limine, and defense counsel made
an opening presentation

that identified defendant's defense. At the time R.L. testified, the State
and the trial judge knew that defendant would deny all of M.C.'s
accusations including her version of the shower incident.

There are other reasons to reject the State's argument. Defendant was
charged with three counts, two of which have a maximum punishment of life
in prison. Under the State's theory, the accident issue did not relate to
the more serious offenses, but only to the less serious charge of lewd and
lascivious conduct. Significantly, the conduct which R.L. alleged -
rubbing of her vagina - was not the conduct for which defendant arguably
claimed accidental touching - having M.C. rub his penis.

We find two decisions from other states particularly helpful. In the
New Jersey case of State v. G.V., the defendant was charged with sexually
abusing his younger daughter over a five-year period. The trial court
admitted evidence that he had similarly sexually abused his older daughter
to show intent or absence of mistake. In language approved by the Supreme
Court, the Appellate Division rejected this theory stating:

The supposed "possible defense" [of accident or mistake] was
never raised by the defendant. Moreover, to do so in the context
of this case would have been absurd. If we were dealing with an
isolated incident, or even a few separate occasions, of allegedly
improper touching, the "possible defense" might have been in
issue. But this case involves an horrendous course of patent
sexual depravity which continued for years. No reasonable
defense, under these circumstances, would rely on the theory that
these atrocious acts were simply misinterpreted expressions of
fatherly affection.

Nor can it be fairly said that if the defendant committed the
acts in question, there was a material factual dispute with regard
to whether he was seeking sexual gratification. As stated in
State v. Stevens, 115 N.J. 289, 301, 558 A.2d 833 (1989), a
"necessary corollary to the principle that other-crime evidence
can be admitted to prove any fact in issue . . . is the
requirement that the "issue" be genuine, and that the other-crime
evidence be necessary for its proof." Neither of these
requirements were satisfied here.

Id. at 141-42.

In State v. Ives, 927 P.2d 762 (Ariz. 1996), the defendant was charged
with four counts that he had directly or indirectly touched the private
parts of three young female victims. The trial court admitted the
testimony of a fourth young female who stated that the defendant had
touched her vagina over her clothing on a number of occasions when she was
four years of age. The State argued that the evidence was admissible to
show intent and lack of accident or mistake. In support of its argument
the State emphasized that the defendant admitted touching two of the
victims, but argued that there was no sexual intent. The Court rejected
this argument:

[D]efendant did not claim that he touched the girls in the
proscribed way but did so by accident or mistake. Instead,
defendant consistently maintained that he did not touch the girls
in any illegal way . . . . The state has repeatedly characterized
portions of defendant's testimony as admissions of touching the
girls. . . . [D]efendant only admitted that he touched L.M. to
help her up to a cabinet and that he touched T.J. to dry her off
with a towel at her parents' request. It seems likely that many
defendants charged with child molestation will have had occasions
for legal touching of the alleged victims.

There is simply no issue in this case as to whether defendant
"accidently" or "mistakenly" rubbed the victims' private parts.
Instead, the issue is whether defendant did the acts at all. As
the trial transcripts very clearly demonstrate, the issue at trial
was one of credibility; did the jurors believe the girls or did
they believe defendant?

Id. at 771 (internal citations omitted).

Under any reasonable construction of Winter's "genuinely in issue"
requirement, a defense of accident was not genuinely in issue in this case.
The trial court erred in admitting the prior bad act evidence based on this
rationale. While the trial court must be accorded discretion in its
evidentiary rulings, we find that this ruling was an abuse of discretion.

We also address the trial court holdings that R.L.'s testimony met the
requirements of V.R.E. 403 because its probative value was not
substantially outweighed by its prejudicial effect. Again, this is a
discretionary ruling of the trial court, reviewable here for abuse of that
discretion. See Winter, 162 Vt. at 399, 648 A.2d at 631. In making this
comparison, we assume the probative value of the evidence argued by the
State. (FN11) Given the dissimilarity of the prior bad act and the event
for which defendant claimed the touching was accidental, we cannot find
that the legitimate probative value of R.L.'s evidence was strong.

On the other hand, even a marginally relevant assertion that defendant
had sexually abused his own daughter, and got away with it, was highly
prejudicial. Any evidence of a similar past unpunished crime creates a
great risk of unfair prejudice. See id. at 399, 648 A.2d at 631. As we
discussed above, we have in other decisions labeled such evidence as
extremely prejudicial.

The State responds that the "relevant portion" of R.L.'s testimony
covers only two transcript pages, and that the State did not even mention
it in closing argument. These considerations go to whether the court's
Rule 403 rulings were harmless since they emerged only after the rulings
were made. We recognize that R.L.'s testimony of her father's sexual abuse
of her was brief because it

involved only one event. On the other hand, this accusation became a
significant part of the trial. Almost half of the live witnesses testified
about this event. Perhaps more damaging than the event itself was R.L.'s
mother's testimony that the police responded to the accusation and that
defendant has never seen his daughter since the accusation. The State did
not mention the testimony in closing argument, but defense counsel did
address it, apparently believing it was too damaging to be ignored.

There is another point about R.L.'s evidence which bears on the Rule
403 analysis. R.L.'s mother testified that the police became involved as a
result of her accusation. The jury heard that the police were involved,
but did not hear, as the prosecutor conceded in a sidebar conversation to
the judge, that defendant was not charged with a crime as a result of
R.L.'s disclosure. We held in Winter, 162 Vt. at 401, 648 A.2d at 632,
that in conducting a Rule 403 balancing, where the prior bad act is a crime
that was investigated but not charged, the court must "weigh against
admission the State's failure to show why an allegation, that was not
prosecuted . . . years ago, should be presented before the jury now." The
trial judge did not consider this factor, and the jury heard only the
accusation and not the result of the police investigation.

In summary, we conclude that the prior bad act evidence was not
admissible under V.R.E. 404(b) on the basis that it showed absence of
accident. Even if it passed the Rule 404(b) test on this theory, its
probative value was far outweighed by the prejudicial effect, and it did
not meet the standard of V.R.E. 403.

III.

Finally, defendant contends the court abused its discretion, and
violated his constitutional right to present a defense, by denying his
request to have the jury hear the audiotape of his police interview.
During the State's cross-examination of defendant, the prosecutor asked
whether the police officer had accurately testified that defendant appeared
to be "cocky" and had laughed

throughout his interview. Defendant denied that he had been cocky or
laughed, and the prosecutor noted that "we can play the tape." Defense
counsel, in response, requested that the tape be played in its entirety to
demonstrate defendant's demeanor. Although the State did not oppose the
request, it noted that the tape was about fifty minutes in length, and
contained other potentially prejudicial statements which the court had
earlier expressed a disinclination to get into and which would be difficult
to edit out. The court ruled that it would admit a redacted transcript of
the interview but denied the request to play the tape, noting that
defendant could address the demeanor issue on redirect. Thereafter, on
redirect examination, defendant testified that he was "nervous, uptight,
and just a little bit distraught" during the police interview. The court
subsequently observed with respect to the demeanor issue that counsel had
"put that in . . . context on your redirect."

Although not explicit in its ruling, the trial court apparently based
its decision to exclude the audiotape on V.R.E. 403 because it would cause
"undue delay, waste of time, or needless presentation of cumulative
evidence." V.R.E. 403. As noted, the State had expressed concern about
the length of the audio recording and the need to redact irrelevant and
potentially prejudicial statements throughout the tape.

The trial court enjoys broad discretion in ruling on the admissibility
of evidence under Rule 403, and this Court reviews its rulings solely for
abuse of that discretion. State v. McElreavy, 157 Vt. 18, 23, 595 A.2d 1332, 1334-35 (1991). Here, we note that the trial court had the benefit
of hearing both the officer's and defendant's accounts of the interview,
and of measuring their relevance and potential prejudicial impact in the
overall context of the trial. The trial court's judgment that the demeanor
issue could be adequately addressed through redirect examination of
defendant, and defendant's subsequent explanation that he was nervous and
distraught during the

interview, leave no basis to conclude that the court abused its discretion.
Accordingly, we discern no error.

Reversed and remanded.

FOR THE COURT:

_______________________________________
Associate Justice

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

FN1. The interview was videotaped and later shown to the jury at trial.

FN2. Although defendant testified to this incident of accidental contact,
the State ignored it, neither making any charge based upon it nor offering
it as a prior bad act.

FN3. At trial, defendant admitted that the photograph was of him, but
testified that it was taken by J.C., not M.C.

FN4. The alleged acts with A.G. consisted of his touching her vagina while
they watched cartoons, while A.G.'s mother was elsewhere in the house. The
State did not seek to admit this evidence at trial.

FN5. This Court upheld a seating arrangement in which the defendant and the
child witness had a somewhat obstructed view of each other, State v.
Dunbar, 152 Vt. 399, 404-06, 566 A.2d 970, 973-74 (1989), but that decision
preceded the Supreme Court's decision in Craig. In Dunbar, the court made
case-specific findings of necessity based on evidence of trauma to the
child. Id. at 405, 566 A.2d at 974.

FN6. The State cited State v. Plante, 164 Vt. 350, 355, 668 A.2d 674, 677
(1995) as a case in which this Court found that improper admission of prior
bad act evidence was harmless error. Plante was decided before State v.
Carter, 164 Vt. 545, 555, 674 A.2d 1258, 1265 (1996), in which we held that
the beyond-a-reasonable-doubt standard applied to both constitutional and
non-constitutional errors alleged to be harmless, and did not use the
harmless beyond-a-reasonable-doubt standard.

FN7. The State also argued from the beginning that the evidence was
admissible to show a common scheme or plan. This rationale was not picked
up initially by the judge who considered the motion in limine, but the
court ruled the evidence admissible to show absence of accident, the
State's primary rationale, and "to demonstrate opportunity to commit the
offenses." In determining whether the evidence met the standard of V.R.E.
403, however, the court added that the evidence showed a common scheme or
plan by defendant.

The issue was revisited at trial. The trial court ruled that R.L.'s
evidence "would . . . suggest, if not demonstrate, a common plan and scheme
to take advantage of young girls." The judge suggested an alternative
rationale - that the evidence was admissible to respond to defendant's
claim that it was incredible that defendant would rub M.C.'s vagina in
J.C.'s apartment when she was in the next room. The court noted that R.L.
claimed that defendant did the same thing to her, and this showed that
defendant was bold enough to engage in this conduct despite the high risk
of discovery.

The trial judge charged the jury that it could consider R.L.'s
evidence as bearing on whether defendant was capable of taking a chance of
having a lewd contact with a child with another person present or whether
defendant's conduct was accidental or intentional, the primary rationale
argued by the State. We cannot determine what rationale the jury might
have used in considering the evidence.

Neither defendant nor the State has addressed the State's first
rationale of common scheme or plan or the motion judge's rationale of
demonstration of opportunity. Both defendant and the State have addressed
the trial judge's alternative rationale, but they have done so only
briefly, and the trial court record related to this rationale is very
limited. We conclude that we cannot, based on the state of the record and
briefing, effectively address any of the possible alternative grounds for
admission. If the State seeks to admit R.L.'s testimony during a retrial
based on a rationale different from that considered in this opinion, the
trial court can develop an appropriate record for review.

FN8. The dissent suggests he made such a claim by cross-examining M.C.
during her video deposition to show that defendant was in the shower and
was unaware of M.C.'s subsequent entry into the shower. The inference the
dissent is trying to draw is obscure at best. M.C.'s testimony was that
she started the shower, momentarily left the bathroom with the shower
running, and returned to find defendant in the shower. The notion that
defendant would enter a running shower, but be unaware of the person who
turned it on, is incredible. The point of the cross-examination was to
find discrepancies in M.C.'s testimony, not to set up a defense of
accidental touching in the shower because defendant was unaware that M.C.
was in the shower with him. Defendant's consistent position was that he
was never in the shower with M.C.

FN9. Although the dissent does not say so directly, we believe that much of
the dissent's position is based on the misconception that M.C. and
defendant described the same shower incident, but disagreed on the intent
involved in the sexual touching. Thus, the dissent talks about a juror
"who believed defendant's touching of M.C. in the shower was accidental."
(Emphasis added). There is no evidence of accidental touching in the
shower: M.C. described intentional touching in the shower, and defendant
described accidental touching outside the shower.

This same misconception pervades reliance on many of the precedents
from other jurisdictions cited by the dissent. For example, in Butcher v.
State, 627 N.E.2d 855 (Ind. Ct. App. 1994), defendant admitted to being
found nude lying on top of his minor daughter, after fondling her breasts,
but defended on the basis of lack of intent because either he "(1) could
not resist his daughter's advances or (2) he was forced, against his will,
to touch his daughter's breasts." Id. at 859. In Day v. State, 643 N.E.2d 1 (Ind. Ct. App. 1994), the defendant admitted improperly touching two
ten-year-old girls who were staying with his daughter, as they testified,
but "denied any improper intent to arouse or satisfy his sexual desires."
Id. at 2. In these cases, both the victim(s) and the defendant described
the same incident, but the defendant claimed lack of intent.

FN10. That was exactly the situation in Michigan when the Supreme Court of
Michigan decided People v. Vandervliet, 508 N.W.2d 114 (Mich. 1992),
opinion amended by 520 N.W.2d 338 (Mich. 1994), one of the cases relied
upon by the dissent. In the absence of a procedure to narrow the issues
and require the defendant to articulate his defense, the Court ruled that
it was required to allow admission of the prior bad act evidence as bearing
on the defendant's intent. Id. at 127-28. The main holding of Vandervliet
is, however, the prospective adoption of a procedure, like that existing in
Vermont, to require the prosecution to give notice of the intent to offer
prior bad act evidence and to authorize the trial judge "to require
defendant to articulate his theory or theories of defense." Id. at 133.
Under this procedure, the Court prospectively adopted the Winter rule that
an issue must be truly contested, and the point of Professor Imwinkelried
that a defendant who contests only the doing of the illegal act implicitly
concedes intent. See id.

FN11. The State's theory, as adopted by the trial judge, was that the fact
that defendant once touched his daughter's vagina made it more likely that
M.C.'s contact with defendant's penis in or near the shower was not
accidental. As Wigmore explains, logical relevance is present because of
"the improbability of a like result being repeated by mere chance." 2 J.
Wigmore, Evidence § 302, at 245 (Chadbourn rev. 1979), quoted in In re
S.G., 153 Vt. 466, 471, 571 A.2d 677, 680 (1990). We indicated reluctance
to accept this rationale in In re S.G., where the State offered evidence of
the physical abuse of an older sibling to show that the broken bone of a
younger sibling was not accidental because it was indistinguishable from a
character rationale. In re S.G., 153 Vt. at 471, 571 A.2d at 680.

Here, the reason to find that there was no logical relevance is even
greater because the nature of the conduct was quite different on the two
occasions. See, e.g., Clark v. State, 953 P.2d 159, 162 (Alaska Ct. App.
1998) (the evidence of other misconduct must be similar to the act of
misconduct with which defendant is charged). The real point of the
evidence in this case was to show that defendant is a child sexual abuser.

------------------------------------------------------------------------------
Dissenting

No. 99-466

State of Vermont Supreme Court

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

Bernard R. Lipka November Term, 2000

Brian L. Burgess, J.

William H. Sorrell, Attorney General, and David Tartter, Assistant
Attorney General, Montpelier, for Plaintiff-Appellee.

Robert Appel, Defender General, and Anna Saxman, Appellate Attorney,
Montpelier, forDefendant-Appellant.

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

AMESTOY, C.J., dissenting. I agree with the majority that the trial
court's findings on the need to seat R.L. - a child witness - with her back
to defendant were inadequate. I do not agree that the deficiency requires
reversal of the judgment. The evidence at the heart of the State's case -
the videotaped deposition testimony of the seven-year-old victim, M.C. -
leaves no doubt that the jury would have reached exactly the same result
without R.L.'s testimony. The majority is mistaken, as well, in concluding
that R.L.'s testimony was inadmissible under V.R.E. 404(b) to prove that
defendant's misconduct was not the result of accident or mistake.
Defendant placed his intent sufficiently at issue to admit the testimony,
as the trial court here reasonably concluded. I therefore respectfully
dissent.

The Sixth Amendment issue arose in response to the State's motion for
a special seating arrangement for R.L., who was nine years old at the time
and had not seen defendant since she had alleged that he molested her two
years earlier. The trial court approved an arrangement whereby the child
sat a table in front of the jury, with her back to defendant. As the
majority correctly observes, this arrangement was not necessarily invalid;
the right to confrontation is not absolute, and may give way upon an
adequate showing of necessity to protect the welfare of a child witness.
Maryland v. Craig, 497 U.S. 836, 850-55 (1990). The problem here arose
because the court failed to make specific findings on the record that the
accommodation was necessary to avoid causing the child emotional trauma, as
the high court has required. See id. at 855-56.

In this regard, however, it is worth noting that although defense
counsel objected to the seating arrangement, the objection was principally
on the basis that defendant had an absolute right to physically confront
the witness, a right which is qualified. Counsel did not object on the
ground that the State's showing of need was insufficient to justify the
proposed seating arrangement, the issue which defendant has raised on
appeal. Nor did counsel object that the court's findings in response to
the State's motion were deficient. Although defendant's objection may have
been adequate to preserve the constitutional claim for review, a proper
objection would have provided the trial court an opportunity to determine
whether the requirements of Craig had been satisfied, and to make the
requisite finding of need on the record.

Nevertheless, as the majority notes, the trial court's failure to make
the requisite finding of need does not mark the end of our inquiry.
Confrontation Clause violations are subject to harmless error analysis,
focusing on the strength of the remaining evidence and the potential
prejudice of the otherwise improper evidence. Coy v. Iowa, 487 U.S. 1012,
1021 (1988). Analyzed in this light, the majority concludes that the trial
court's omission cannot be deemed harmless beyond a reasonable

doubt because the only other evidence of guilt was the victim's testimony,
and because R.L.'s evidence was highly prejudicial. Neither argument
withstands analysis.

First, this case was not merely "a classic swearing contest," as the
majority asserts, nor were the victim's accusations uncorroborated. Ante,
at 10. While it is rare to adduce eyewitnesses to a child molestation,
here the State presented the next best thing, a generally consistent report
to a third party, the victim's mother, with such authenticating details as
the fact that the mother first learned of the misconduct by overhearing a
conversation between the victim and her sister, that the victim was
initially reluctant to reveal what had happened, and that doing so her
caused her to become upset. Defendant admitted, moreover, that his
genitals had come into contact with the victim's hand, although he claimed
that the touching was inadvertent.

Nor, in determining harmless error, are we required to disregard the
quality of the remaining evidence and its likely impact on the jury. The
jury here had the opportunity to view the deposition testimony of M.C., the
seven-year-old victim in this case, to consider her detailed and graphic
description of defendant's numerous acts of sexual misconduct, and to weigh
her credibility against that of defendant. This, in my view, removes any
doubt that the jury would have reached the identical verdict in the absence
of R.L.'s testimony.

The substance of R.L.'s brief testimony, in contrast to M.C.'s , was
that defendant had once touched her "privates," which she was able to
define as the vagina and penis. Although the majority characterizes the
testimony as "particularly explosive and prejudicial," ante, at 14, the
deputy state's attorney - who otherwise utilized every possible piece of
incriminating evidence - made no mention of R.L. during closing argument.
Thus, in the context of this case, the record supports the conclusion that
any error here was harmless beyond a reasonable doubt.

The majority also claims that the substance of R.L.'s testimony was
improperly admitted under V.R.E. 404(b) as prior bad act evidence. The
State had argued, among other theories, that R.L.'s testimony was relevant
to show that "the contact between defendant and M.C. was not an accident,"
and that defendant "intentionally, and not mistakenly, assaulted M.C." The
trial court agreed, ruling that the evidence was relevant and admissible on
the issue of accidental sexual contact.

Contrary to the trial court's express finding, the majority holds that
defendant had not placed his intent at issue. This holding is based, in my
view, upon a mistaken reading of the record and the law. Detective Demar
testified that although defendant denied engaging in sexual contact with
M.C., he admitted that it was possible that M.C.'s hand had accidentally
touched his penis while she was getting into his shower and he was getting
out, and defendant later admitted that the touching had occurred.
Defendant also told the detectives that he had gone to the store with M.C.
to buy her candy "before we took the shower." Defendant further described
an incident in which he was playing with the girls when they allegedly
pulled down his pants and M.C. reached up and grabbed his penis. During
the videotaped deposition of M.C., defense counsel closely questioned the
minor about the shower incident, attempting to establish that defendant was
unaware of M.C.'s presence. This line of questioning by defense counsel
tended to corroborate defendant's pretrial statement to Detective Demar
that any touching was inadvertent and accidental.

While this Court has not fully explored the circumstances sufficient
to put the question of intent "genuinely in issue," State v. Winter, 162
Vt. 388, 393, 648 A.2d 624, 627 (1994), other courts have routinely held
that intent may become sufficiently material to warrant the admission of
prior bad acts evidence through a variety of means, including the
defendant's pretrial statements, defense counsel's opening statement,
counsel's cross-examination of the State's witnesses, or defendant's

case-in-chief. See, e.g., State v. Mincey, 636 P.2d 637, 653 (Ariz. 1981),
cert. denied, Mincey v. Arizona, 455 U.S. 1003 (1982) (defendant opened
door to prior crimes evidence through counsel's opening statement); Butcher
v. State, 627 N.E.2d 855, 858-59 (Ind. Ct. App. 1994) (defendant placed his
intent at issue through pretrial statement to the police claiming that the
victim had caused the touching by pulling defendant toward her); Day v.
State, 643 N.E.2d 1, 5 (Ind. Ct. App. 1994) (defendant placed his intent at
issue through defense counsel's cross-examination of the two victims which
"suggested the lack of [defendant's] intent as they emphasized the innocent
nature of the touches being made during a game of tag"); People v.
Vandervliet, 508 N.W.2d 114, 126-27 (Mich. 1993) (defendant's general
denial of alleged sexual misconduct with minor did not preclude admission
of other acts evidence where defendant's pretrial statements claimed that
touching was accidental); Welch v. State, 2 P.3d 356, 367 (Okla. Crim. App.
2000), cert. denied, Welch v. Oklahoma, 531 U.S. 1056 (2000) (defense
counsel's opening statement and questioning of witnesses raised issue of
mistake or accident sufficiently to warrant admission of other crimes
evidence); see also Estelle v. McGuire, 502 U.S. 62, 68-69 (1991) (although
defendant did not assert accident defense at trial, prior bad acts
demonstrating battered child syndrome were admissible where defendant had
claimed in pretrial statements that child had injured herself by falling
from couch). (FN1)

The majority also cites a treatise on prior bad act evidence for the
"general rule" that intent is not genuinely at issue when the defendant
implicitly concedes mens rea by raising an identity or

alibi defense. 2 E. Imwinkelried, Uncharged Misconduct Evidence § 813, at
69 (1999). The point is inapposite. Whatever the merits of the general
rule, it is - in my view - of assistance only where there is no doubt that
a crime has been committed. I accept that mens rea can be characterized as
"undisputed" where the prosecution's eyewitness testimony describes a crime
that was obviously committed (as, for example, where witnesses have seen a
perpetrator's unprovoked assault), and the defendant has denied he was the
perpetrator through, for example, an alibi defense. In such a case, intent
cannot be said to be sufficiently material to allow the use of bad acts
evidence, since the jury's determination of the defendant's guilt will
depend entirely upon their acceptance or rejection of the alibi.

This is a very different case. As the majority correctly observes,
rather than having eyewitnesses describing a crime obviously committed,
the victim's allegations of sexual abuse had no direct corroboration.
Apart from the circumstantial evidence described earlier that lent
credibility to the victim's allegations, the evidence here might have
described a "classic swearing contest" but for the one piece of suspicious
conduct that defendant could not deny without jeopardizing his credibility.
That, of course, was the "shower incident." I have a much different view
of the significance of this incident than does the majority.

Defendant admitted to investigating officers that he took M.C. to buy
candy "before we took the shower." The majority notes that, despite this
statement, defendant thereafter consistently denied that he and M.C.
showered together. But even defendant's later version of the incident
conceded that the "separate" showers of defendant and M.C. were so closely
related in time that defendant felt

compelled to explain that M.C. may have accidentally touched his penis
while she was getting into the shower and he was getting out. (FN2)

The "accidental touching" defense to the shower incident was pertinent
not only to the lewd and lascivious charge, but to the other counts, as
well. We have previously observed that "many people, including juries and
judges, find it difficult to believe that [sexual abuse of children]
happens." State v. Forbes, 161 Vt. 327, 332, 640 A.2d 13, 16 (1994)
(internal quotation and citation omitted). It may be true, as the majority
speculates, that no juror who believed M.C.'s testimony could conclude that
defendant's actions were accidental. But it is at least as valid to
speculate that a juror who believed defendant's touching of M.C. in the
shower was accidental would also conclude that none of the other alleged
acts occurred. The relevance of the accidental touching explanation to all
of the charges was well understood by the prosecution, the defense, and the
court.

The question here is not whether evidence falls within an exception to
a supposed rule of exclusion, but whether the "evidence [is] in any way
relevant to a fact in issue other than by showing mere propensity."
Vandervliet, 58 N.W.2d at 121 (internal quotation and citation omitted).
Notwithstanding defendant's general denial, the record and the law amply
support the trial court's conclusion that defendant had placed his intent
sufficiently at issue to support the admission of R.L.'s testimony under
the "mistake or accident" exception to V.R.E. 404(b).

The majority also argues that any probative value of R.L.'s testimony
was substantially outweighed by its prejudicial impact under under V.R.E.
403. (FN3) Again, the record does not support the claim. Although clearly
relevant to rebutting defendant's claim of accidental or inadvertent
touching, R.L.'s testimony was limited. In contrast to M.C.'s extensive,
videotaped testimony graphically describing the multiple acts of sexual
misconduct perpetrated by defendant, R.L.'s pertinent testimony consisted
of a few brief questions and answers to the effect that defendant had once
touched her privates while they were watching television. Defense counsel
asked no questions of R.L. on cross-examination, and the prosecutor made no
reference to her testimony during closing argument. In addition, the court
issued a limiting instruction to the jury confining the relevance of her
testimony. Accordingly, I do not agree that the court abused its
discretion in admitting the testimony, or that its prejudicial impact so
outweighed its probative value as to require reversal of the judgment. See
State v. Catsam, 148 Vt. 366, 383-84, 534 A.2d 184, 195 (1987) (record did
not support conclusion that court abused or withheld its discretion in
admitting evidence of prior sexual misconduct given logical relevance of
evidence and court's limiting instruction).

Finally, the majority posits a fatal inconsistency in the State's
effort to characterize R.L.'s testimony as sufficiently probative for
admission, but insufficiently probative to have affected the jury's
decision. The dynamic of trial, however, frequently results in the
admission of relevant evidence of ultimately little importance. Viewed in
its entirety, the record here fully supports the

conclusion that the verdict would have been guilty, even if R.L. had never
testified.

Accordingly, I would affirm the judgment.

_______________________________________
Chief Justice

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

FN1. The supplemental federal authorities submitted by defendant suggest
only that a defendant may in some cases remove intent as a contested issue,
and thereby preclude the admission of prior bad acts evidence, through
"some statement to the court of sufficient clarity to indicate that the
issue will not be disputed." United States v. Colon, 880 F.2d 650, 659 (2d
Cir. 1989); see also United States v. Jemal, 26 F.3d 1267, 1272-74 (3d Cir.
1994); United States v. Garcia, 983 F.2d 1160, 1173-76 (1st Cir. 1993).
Whatever the merits of this approach, there was no such statement or
stipulation in this case.

FN2. The majority asserts that there was, in fact, no evidence of
accidental touching in the shower, but rather that "defendant described
accidental touching outside the shower," as he exited and M.C. entered.
Ante, at 21 n.9. Thus, the majority concedes that defendant placed his
intent at issue; the fact that M.C.'s version of the incident differed
somewhat from defendant's does nothing to undermine the point.

FN3. Rule 403 provides: "Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence."

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