State v. Shippee

Annotate this Case

State v. Shippee (2002-081); 176 Vt. 542; 839 A.2d 566

2003 VT 106

[Filed 05-Nov-2003]

ENTRY ORDER

2003 VT 106

SUPREME COURT DOCKET NO. 2002-081

JANUARY TERM, 2003

State of Vermont } APPEALED FROM:
}
}
v. } District Court of Vermont,
} Unit No. 2, Chittenden Circuit
Vernon T. Shippee }
} DOCKET NO. 3910-7-98 Cncr

Trial Judge: Benjamin W. Joseph

In the above-entitled cause, the Clerk will enter:

¶ 1. Defendant Vernon T. Shippee appeals his conviction after a
jury found him guilty of lewd and lascivious conduct in violation of 13
V.S.A. § 2601. He argues on appeal that: (1) he was subjected to arbitrary
and discriminatory enforcement because he was charged under 13 V.S.A. §
2601, a felony, rather than under 13 V.S.A. § 2632, a misdemeanor; (2) the
trial court erred by admitting, as signature evidence, a videotape and
testimony regarding defendant's prior conduct at another store; (3) it was
plain error for the court to admit a police officer's testimony because it
impermissibly bolstered the credibility of the hearsay statements made by
the child victim; and (4) the court erred in denying defendant's motion to
require the State to produce the child victim as a witness. We hold that
the trial court failed to exercise its discretion under V.R.E. 403 when it
admitted the evidence regarding defendant's prior conduct and, therefore,
reverse and remand.

¶ 2. The State charged defendant with lewd and lascivious conduct
for exposing himself and masturbating in front of a young child at a
department store. The charge was based on the following alleged facts. On
May 31, 1998, T.P. (mother) was shopping at Wal-Mart with her five-year-old
daughter, E.P., when a man, later identified as defendant, approached them.
According to the testimony, defendant followed them closely throughout the
store. Subsequently, on July 19, 1998, the family was watching a news
story on television that showed defendant's picture in connection with a
court case. E.P., who was playing in the room during the news story,
approached mother and said to her unexpectedly that the man on television
was a "bad man" who "had his private parts sticking out" and "was
scratching himself" when they were at Wal-Mart. Mother promptly notified
the police, and a police detective and SRS investigator interviewed E.P. at
the police special investigations office. Defendant was then arrested and
eventually charged under 13 V.S.A. § 2601.

¶ 3. Prior to trial, the State moved to introduce hearsay
statements of E.P., pursuant to V.R.E. 804a. Specifically, the State
sought to introduce statements made by E.P. to her mother and the detective
during the police interview. In ruling that the child's statements were
admissible hearsay under Rule 804a, the court noted the presence of
"substantial indicia of trustworthiness sufficient to allow the jury to
consider, weigh and dispose of the information."

¶ 4. In February 2000, the State filed a "Notice of Prior Bad
Acts" in which it stated its intent to introduce testimony by a loss
prevention specialist at Ames Department Store that, on May 3, 1998, he
observed, and recorded on closed circuit video, defendant approach a young
child in the store and "play" with himself. The court denied the motion,
subject to further motion for introduction at trial, finding that the
"unfair prejudicial effect [of the evidence] is not outweighed by its
probative value."

¶ 5. One week before trial, the State informed defendant's counsel
by letter that the State was uncertain as to whether it would call E.P. to
testify and that, therefore, defendant's counsel would have to subpoena
E.P. if he wished to ensure her presence at trial. Defendant requested
that E.P. be required to testify on the morning of trial, and the court
denied the motion as untimely. During the jury trial, held on October 18,
2000, the State again sought to introduce the videotape and testimony of
the Ames employee. After reviewing the tape, the trial judge granted the
request, and allowed the State to admit the tape and testimony. The jury
returned a verdict of guilty.

¶ 6. On October 20, 2000, two days after trial, defendant filed a
motion to dismiss based on his argument that the State should have charged
him with a prohibited act under 13 V.S.A. § 2632, a misdemeanor, instead of
lewd and lascivious conduct under 13 V.S.A. § 2601, a felony. The court
denied the motion, and this appeal followed.

¶ 7. First, defendant claims he was subjected to arbitrary and
discriminatory enforcement because he was charged with a felony under 13
V.S.A. § 2601 instead of a misdemeanor under 13 V.S.A. § 2632, and that the
court therefore erred by denying his motion to dismiss. This argument
lacks merit. When there are overlapping criminal offenses with which a
defendant could be charged based on the facts, it is within the
prosecutor's discretion to choose among them. State v. Perry, 151 Vt. 637,
641, 563 A.2d 1007, 110 (1989); United States v. Batchelder, 442 U.S. 114,
123-24 (1979) ("This Court has long recognized that when an act violates
more than one criminal statute, the Government may prosecute under either
so long as it does not discriminate against any class of defendants.").

¶ 8. Defendant further argues that, under the void-for-vagueness
doctrine, 13 V.S.A. § 2601 lacks "sufficiently precise standards to avoid
arbitrary and discriminatory enforcement." See State v. Purvis, 146 Vt.
441, 442, 505 A.2d 1205, 1206-07 (1985). Because First Amendment interests
are not implicated here, we must base our examination of the statute on its
application to defendant and the facts presented, and not on the statute's
possible application to others. State v. Dann, 167 Vt. 119, 128, 702 A.2d 105, 111 (1997). Section 2601 provides that "a person guilty of open and
gross lewdness and lascivious behavior shall be imprisoned not more than
five years or fined not more than $300.00, or both." 13 V.S.A. § 2601.
Defendant was charged with violating 13 V.S.A. § 2601 based on facts that
he exposed himself and masturbated in front of a young child at a
department store. As we found in Purvis, 146 Vt. at 443, 505 A.2d at 1207,
"the statute is sufficiently certain to inform a person of reasonable
intelligence that this type of conduct is proscribed." Thus, the court did
not err by denying defendant's motion to dismiss.

II.

¶ 9. Second, defendant argues that the trial court erred by
admitting, under Vermont Rule of Evidence 404(b), a videotape and testimony
regarding defendant's prior conduct at another department store as
signature evidence. Defendant also claims that the court failed to
exercise its discretion under V.R.E. 403. (FN1)

¶ 10. In order to claim error on appeal, a defendant is required to
make a timely objection to the admission of evidence, and if it is not
apparent from the context, he or she must state the specific ground for the
objection. V.R.E. 103(a)(1). One of the primary purposes behind this Rule
requiring specific objections is to sufficiently alert the trial court to
the theory behind the objection so that the judge can rule intelligently
and quickly. State v. Bissonette, 145 Vt. 381, 392, 488 A.2d 1231, 1237
(1985); Bryant v. Consol. Rail Corp., 672 F.2d 217, 220 (1st Cir. 1982).
In this case, prior to trial in September 2000, the court denied the
State's proffer of the prior act testimony and videotape under Rule 404(b)
because its probative value did not outweigh its unfair prejudicial effect.
One month later at trial, when the State again moved to admit that
evidence, defendant objected to its admission on the grounds that it was
"propensity" evidence.

¶ 11. Rules 403 and 404(b) "go hand in glove" because 404(b)
"describes a particular form of evidence that might create the 'unfair
prejudice' anticipated under [Rule] 403." United States v. Currier, 836 F.2d 11, 17 (1st Cir. 1987). Thus, even where the single issue on appeal
was whether the trial court erred in improperly admitting a prior bad act
pursuant to 404(b), we have proceeded to examine the admissibility under
Rule 403: "[A]ssuming that the proffered evidence meets the requirements of
Rule 404(b), the evidence must also pass the Rule 403 balancing test, in
which the probative value of the evidence is compared to any unfair
prejudicial effect." State v. Winter, 162 Vt. 388, 399, 648 A.2d 624, 631
(1994).

¶ 12. Given the necessary interaction between 404(b) and 403 in
determining the admissibility of prior acts evidence, the context in which
the objection was made, and the court's pre-trial 404(b) ruling on Rule 403
grounds, the defendant's "propensity" objection was sufficiently specific
to alert the trial court to defendant's theory behind the objection and to
preserve the objection for our review. Cf. Bissonette, 145 Vt. at 392, 488 A.2d at 1237 (finding that defendant's objection to prior bad acts evidence
on grounds that it was "collateral"and not on 404(b) grounds was not
sufficient to preserve objection for review under V.R.E. 404(b) because it
did not draw the court's attention to defendant's concerns under Rules 403
and 404). Therefore, we first turn to the discretionary action of the
trial court in making a decision under the 403 test because our decision on
this issue is determinative.

¶ 13. The discretion of the trial court is broad when reaching a
decision based on the balancing test under Rule 403. State v. Wheel, 155
Vt. 587, 604, 587 A.2d 933, 944 (1990). To prevail on his claim, defendant
must prove the court either completely withheld its discretion or exercised
it on grounds clearly untenable or unreasonable. State v. Dorn, 145 Vt.
606, 616, 496 A.2d 451, 457 (1985).

¶ 14. While we have not required the trial court to specify the
precise weight it accords each factor in the balancing test, there must be
some indication - especially in cases like this one where the potential for
unfair prejudice is high - that the court actually engaged in the balancing
test and exercised its discretion under V.R.E. 403. State v. Derouchie,
153 Vt. 29, 35, 568 A.2d 416, 419 (1989) (holding that record was
sufficient to show exercise of discretion by trial court). We find no such
indication here. The court admitted the evidence during trial, stating,

I did just review that tape . . . it's remarkable that the child
is in the shopping cart and the mother is pushing the shopping
cart and is immediately behind the child. But because it's in a
department store with the racks, in effect, Mr. Shippee is around
a corner from the child's mother and in the tape they are within a
few feet of one another, Mr. Shippee and the child's mother, but
the mother can't see Mr. Shippee. The child can, and Mr. Shippee
is obviously playing with himself as charged. So I view this as
signature evidence. I don't think this is propensity. This is a
specific manner of committing this offense so I'm - I have to
agree with [the State] that this is admissible for that reason
because the argument has been made to the jury where the mother
being right there, you know, it couldn't happen that way but, in
fact, here's a tape that tells me this is precisely what happened
- it has happened before and how this person has done it. So for
that reason I am going to find that that's admissible. So you can
- you can put on that testimony to show that tape.

Although we accord a court "wide discretion" in balancing the probative
value of the evidence against the danger of unfair prejudice, we have found
abuse of discretion notwithstanding a showing that the trial court
performed the balancing. Winter, 162 Vt. at 399-400, 648 A.2d at 631 ("The
trial court performed the balancing here . . . . [but] [e]ven accounting
for the court's wide discretion, we conclude that probative value was
substantially outweighed by the danger of unfair prejudice."). Here the
court reviewed the admissibility of the evidence under V.R.E. 404(b), but
there is no sign that it weighed the evidence under V.R.E. 403, despite the
high risk of unfair prejudice.

¶ 15. We are not persuaded by the dissent's view that defendant
"opened the door" to admission of the tape. First, we note that the trial
court did not indicate that it was admitting the evidence on that basis.
Second, the pre-trial ruling balancing the danger of unfair prejudice
created by admission of the tape against its probative value concluded that
the risk of prejudice was too great absent "developments at trial" that
presumably would lead to a different outcome only if an increase in the
probative value of the evidence outweighed the danger of prejudice. No
such weighing took place, and we do not share the dissent's view that the
probative value of the evidence was clear and the unfairness of its
prejudicial impact not apparent. Cf. In re Nash, 149 Vt. 63, 66, 539 A.2d 989, 991 (1987) (holding that there was no abuse of discretion in admitting
evidence where trial court considered the appropriate factors of unfair
prejudice, the "probative value of the evidence [was] clear, and the
unfairness of any claimed prejudice [was] not readily apparent").

¶ 16. In light of our disposition of defendant's argument regarding
the admission of evidence, it is unnecessary to address defendant's other
arguments on appeal.

Reversed and remanded.

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Concurring

¶ 17. SKOGLUND, J., concurring. I concur with the majority
opinion that the trial court abused its discretion by failing to weigh
evidence under V.R.E. 403 when deciding whether prior crime evidence is
admissible under V.R.E. 404(b). I write separately, however, because I
would also find that the trial court erred in finding the testimony of the
department store clerk and the closed-circuit video regarding past acts to
be signature evidence admissible under V.R.E. 404(b).

¶ 18. Rule 404(b) is designed to exclude evidence of prior similar
acts if the evidence is introduced to show that the defendant has a
propensity to commit the charged offense. State v. Bruyette, 158 Vt. 21,
27, 604 A.2d 1270, 1272 (1992). Prior act evidence can be admitted,
however, if it is relevant to prove a different, legitimate element in the
case such as identity, intent, plan, or knowledge. State v. Cardinal, 155
Vt. 411, 414, 584 A.2d 1152, 1154 (1990).

¶ 19. When evidence of past acts is offered to prove identity, we
require that it meet a strict relevance test to be admissible. Bruyette,
158 Vt. at 27, 604 A.2d at 1272. Identity must be a material issue before
the jury, the prior act evidence must be logically relevant to the issue of
identity, and the probative value of the evidence must outweigh its
potential for prejudice. See Bruyette, 158 Vt. at 27-29, 604 A.2d at
1272-73; State v. Winter, 162 Vt. 388, 392-400, 648 A.2d 624, 626-32
(1994); Sweet v. Roy, 173 Vt. 418, 434-42, 801 A.2d 694, 706-12 (2002). If
identity is at issue in the case, the question for the court is whether the
characteristics of the past act are so similar and idiosyncratic as to be
earmarked the handiwork of the accused, in effect, to constitute the
defendant's signature. Bruyette, 158 Vt. at 27, 604 A.2d at 1273.

¶ 20. In Bruyette, we examined whether testimony of the defendant's
girlfriend about their prior consensual sexual conduct was relevant to
identity and therefore admissible as signature evidence under Rule 404(b)
when the specific sexual acts were distinct and substantially similar to
those perpetrated on the victim of a sexual assault. Id. After
establishing that identity was at issue because the victim was blindfolded
during the assault, we noted that to admit the testimony as signature
evidence, the pattern and characteristics of the prior act "must be so
distinctive, in effect, to constitute the defendant's signature." Id. at
27, 604 A.2d at 1273. We further articulated the standard saying:

Although the prior acts of the accused and the charged acts do not
have to be identical, they must possess common features that make
it highly likely that the unknown perpetrator and the accused are
the same person. Whereas a few common features that are unique
may be sufficient, a larger number of them, less remarkable, but
taken together, may also have significant probative value.

Id. at 28, 604 A.2d at 1273.

¶ 21. Applying this rule, we held that "[w]hen the sexual acts are
taken together with the specific statements that the girlfriend and the
victim were forced to repeat, and the defendant's frequent use of cocaine
during the activity, the evidence strongly tended to show that the
defendant was the perpetrator." Id. at 29, 604 A.2d at 1273. See also
Sweet, 173 Vt. at 438-39, 801 A.2d at 709-10 (applying Bruyette in case
where evidence of past pattern of distinctive conduct and vandalism of
mobile home park owner was admissible in case brought by mobile home owner
when identity of the perpetrator was at issue and the prior act was unique
and sufficiently similar to the charged offense to make it highly likely
that defendant and perpetrator were the same person).

¶ 22. We have emphasized that in order to admit signature evidence
under Rule 404(b), "[t]he 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." Winter, 162 Vt. at 393, 648 A.2d at 627. To hold
otherwise would permit the state to use prior act evidence to identify the
defendant as the perpetrator simply because he or she has, at other times,
committed the same garden variety criminal act. This type of
identification is based on nothing more than the forbidden inference of
propensity. See 2 J. Weinstein & M. Berger, Weinstein's Federal Evidence §
404.22[5][c] (Joseph M. McLaughlin ed., 2d ed. 2003).

¶ 23. The prior act evidence offered by the State in this case was
not signature evidence for two reasons. First, identity was not at issue
in the case. As noted, we have consistently held that when prior acts are
proffered as signature evidence, the identity of the perpetrator must be a
material question before the jury. Whether the defendant was present at
the scene was never in dispute here. The only question was whether the
defendant committed the offense and the prior act evidence was offered to
illustrate the manner in which the offense could have been committed.

¶ 24. Second, although the prior act and the charged offense share
some common features, there is nothing within the pattern or
characteristics of the prior act that is so distinct that it constitutes
the defendant's "signature." Neither the way in which the defendant
followed the shopper and positioned himself in view of the child and not
the parent, nor the manner in which he exposed himself is in any way unique
or idiosyncratic. There is also nothing unique about the act of getting
only the child's attention, as many other shoppers could have done so with
solely benign intentions. Similarly, it is an unfortunate reality that
nothing about the way the defendant exposed himself to and allegedly
masturbated in front of the child is unusual or distinct. This type of
conduct certainly does not constitute "signature" criminal behavior
sufficient to identify the defendant as the perpetrator to the exclusion of
others.

¶ 25. The prior act evidence offered by the State should not have
been admitted as signature evidence in this case where identity was not at
issue and the pattern and characteristics of the past acts were
insufficiently distinct to identify the defendant as the perpetrator. On
this basis, I would reverse the trial court's ruling that the department
store clerk's testimony and the closed-circuit video were signature
evidence admissible under V.R.E. 404(b).

¶ 26. I am authorized to state that Justice Johnson joins this
concurrence.

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

¶ 27. ALLEN, C.J. (Ret.), Specially Assigned, dissenting. I would
not reverse defendant's conviction on the grounds identified by the
majority and therefore dissent.

¶ 28. Defendant offers virtually no support for his claim that the
court erred by failing to conduct a balancing test under V.R.E. 403 before
admitting evidence of defendant's prior bad act. Defendant's argument on
appeal consists solely of the following sentence: "Furthermore, the trial
court never viewed the testimony in light of V.R.E. 403, as did Judge
Burgess, who found that its prejudicial effect was not outweighed by any
probative value." This is clearly inadequate briefing and I would not
address this claim. See V.R.A.P. 28(a)(4); Johnson v. Johnson, 158 Vt.
160, 164 n.*, 605 A.2d 857, 859 n.* (1992) (Supreme Court will not consider
arguments not adequately briefed).

¶ 29. More importantly, to the extent the court is required to
conduct a Rule 403 balancing test prior to admitting evidence under V.R.E.
404(b), the record demonstrates that such balancing occurred. Before
trial, the State gave notice pursuant to V.R.Cr.P. 26(c) of its intent to
introduce evidence that defendant had engaged in the same type of activity
four weeks earlier in another department store. The evidence consisted of
testimony from an employee at the store and a closed circuit videotape.
The court conducted the Rule 403 balancing before trial and in a written
opinion concluded that this evidence should be excluded on Rule 403 grounds
absent a claim by defendant that the allegation against him was
"incredible" or "until developments at trial make the introduction of the
other bad acts imperative, or unless the defense otherwise opens the door
to its admission."

¶ 30. Defense counsel later opened the door to admission of this
evidence by implying that it would have been impossible for defendant to
expose himself to the victim given the close physical presence of the
child's mother. The State moved to introduce defendant's prior bad act to
rebut this insinuation. The videotape of defendant's earlier act showed
how defendant used store shelves to shield his activity from the mother's
view. Defendant objected on propensity grounds but did not raise a Rule
403 objection. The court admitted the prior bad act as signature evidence,
explaining that "the argument has been made to the jury where the mother
being right there, you know, it couldn't happen that way but, in fact,
here's a tape that tells me this is precisely what happened - it has
happened before and how this person has done it. So for that reason I am
going to find that that's admissible." Thus, the record reflects that the
court engaged in the Rule 403 balancing test before trial and defendant
later opened the door to the admission of this evidence.

¶ 31. The majority erroneously concludes that the trial court's
failure to conduct a Rule 403 balancing test warrants reversal of
defendant's conviction. However, this Court has conducted the balancing
test itself in cases where the probative value and prejudicial effect are
evident from the record. In State v. Derouchie, 153 Vt. 29, 35, 568 A.2d 416, 419 (1989), for example, we concluded that the trial court had
exercised its discretion under Rule 403 based on the trial court's
statement that it was "going to let in the cocaine evidence." We concluded
that the record did not indicate that the prejudicial effect of the
admitted evidence "so overweighed the probative value that the evidence
should have been excluded as a matter of law." Id. As in Derouchie, the
record here amply demonstrates that the probative value of the admitted
evidence outweighed its prejudicial effect, particularly in light of
defendant's insinuation that this incident could not have occurred in the
mother's presence. Defendant has not met his heavy burden of establishing
that the trial court withheld its discretion or exercised it on grounds
clearly untenable or unreasonable. See State v. Parker, 149 Vt. 393, 401,
545 A.2d 512, 517 (1988).

¶ 32. Finally, to the extent this alleged error should be addressed
at all, I believe our review should be for plain error rather than abuse of
discretion because defendant did not object on Rule 403 grounds at trial.
A defendant cannot claim error in the admission of evidence unless he has
made a timely and specific objection during trial. V.R.E. 103(a)(1); State
v. Fisher, 167 Vt. 36, 43, 702 A.2d 41, 45 (1997). "The objection must
have been made at the time the evidence was offered or the question was
asked, and objection on one ground does not preserve the issue for appeal
on other grounds." Fisher, 167 Vt. at 43, 702 A.2d at 45-46 (internal
citations omitted); see also, 2 J. Weinstein & M. Berger, Weinstein's
Federal Evidence §§ 403.02[1][b], 404.23[5][e] (Joseph M. McLaughlin ed.,
2d ed. 2003) (trial court's decision to admit evidence under F.R.E. 404(b)
generally subject to review for abuse of discretion, but if no objection
made at trial to claimed evidentiary error, review will be for plain error
only). To preserve a Rule 403 objection to the admission of evidence under
Rule 404(b), a party must raise a specific objection during trial. Federal
courts addressing the same issue under the Federal Rules of Evidence have
reached a similar conclusion. See Reporter's Notes, V.R.C.P. 1 ("Federal
cases interpreting the Federal Rules are an authoritative source for the
interpretation of identical provisions of the Vermont Rules"); see also,
United States v. Gomez-Norena, 908 F.2d 497, 499-501 (9th Cir. 1990)
(objection on F.R.E. 404(b) grounds did not preserve claim of error under
F.R.E. 403); United States v. Manso-Portes, 867 F.2d 422, 426 (7th Cir.
1989) (objection to evidence premised on F.R.E. 404(b) did not preserve
objection under F.R.E. 403); United States v. Sandini, 803 F.2d 123, 126-27
(3d Cir. 1986) (objection that evidence was "irrelevant" did not preserve
claim of error under F.R.E. 403 or F.R.E. 404).

¶ 33. The need for a timely and specific objection is particularly
relevant where, as here, the judge who presided at trial did not consider
the pretrial motion concerning the admissibility of defendant's prior bad
act. See State v. Senecal, 145 Vt. 554, 558, 497 A.2d 349, 351 (1985). In
Senecal, we concluded that a defendant had waived his claim that the court
erred in denying his motion to suppress where defendant failed to object at
trial to the admission of the evidence that he had earlier sought to
suppress. Id. at 557-58, 497 A.2d at 351. We explained that defendant's
failure to object would not have resulted in a waiver of his claim had no
new facts been adduced at trial and had the same judge presided at trial as
had decided the motion to suppress. Id. at 558, 497 A.2d at 351. However,
because the trial judge had not ruled on defendant's earlier motion, the
trial judge "never had an opportunity to consider the defendant's objection
to the evidence." Id. We stated that, "[p]articularly since pretrial
rulings are tentative and subject to revision, it cannot be said that
objection at trial would have been a useless performance or would not have
served to further apprise the court or the State of [defendant's] claim."
Id. (citations, internal quotation marks, and ellipses omitted). Thus,
because defendant failed to object at trial, our review was for plain error
only. Id.; see also, Morrisseau v. Fayette, 164 Vt. 358, 363-64, 670 A.2d 820, 824 (1995) ("[I]n criminal cases, we require defendants to seek a
'horizontal appeal' of pretrial rulings made by a different judge so that
the trial judge is not put in error by another judge's ruling."); State v.
Jewell, 150 Vt. 281, 282, 552 A.2d 790, 791 (1998) ("Failure to object to
the admission of evidence at trial that was earlier the subject of a motion
to exclude will constitute a waiver where a different judge presided at
trial than decided the motion.").

¶ 34. In this case, the pretrial judge decided that evidence
concerning defendant's prior bad act was not admissible on Rule 403 grounds
unless defendant opened the door to its admission at trial. The trial
judge later ruled that the evidence was admissible because defendant had
implied that he could not have committed the charged act. In the absence
of a Rule 403 objection at trial, defendant may not now raise this claim of
error on appeal. This Court has consistently held that to preserve an
issue for appeal, a party must "present the issue with specificity and
clarity in a manner which gives the trial court a fair opportunity to rule
on it." In re White, 172 Vt. 335, 343, 779 A.2d 1264, 1270 (2001)
(internal quotation marks and citation omitted). The purpose behind the
preservation rule "is to ensure that the original forum is given an
opportunity to rule on an issue prior to our review." Id., 779 A.2d at
1270-71. Holding that a "propensity" objection under Rule 404 is
sufficiently specific to alert a trial judge to conduct a Rule 403
balancing test flies in the face of our precedents on preservation.
Defendant failed to raise a Rule 403 objection at trial, and the court's
admission of this evidence does not rise to the level of plain error. See
State v. Pelican, 160 Vt. 536, 538-39, 632 A.2d 24, 26 (1993) ("Plain error
exists only in exceptional circumstances where a failure to recognize error
would result in a miscarriage of justice, or where there is glaring error
so grave and serious that it strikes at the very heart of the defendant's
constitutional rights.") (internal quotation marks and citation omitted).

BY THE COURT:
Dissenting:

_________________________________ ______________________________________
Frederic W. Allen, Chief Justice Jeffrey L. Amestoy, Chief Justice
(Ret), Specially Assigned
______________________________________
John A. Dooley, Associate Justice

______________________________________
Denise R. Johnson, Associate Justice

______________________________________
Marilyn S. Skoglund, Associate Justice

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

FN1. Rule 403 provides that:

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.

Rule 404(b) states that:

[e]vidence 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

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