Supreme Court On Appeal from Superior Court, Chittenden Unit, Criminal Division October Term, 2012 Michael S. Kupersmith, J.
Thomas Donovan, Jr., Chittenden County State’s Attorney, and Pamela Hall Johnson, Deputy State’s Attorney, Burlington, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
SKOGLUND, J. Associate Justice
¶ 1 Defendant appeals his conviction of lewd and lascivious conduct with a child following a jury trial. Defendant asserts that the trial court erred in: (1) prohibiting cross-examination of complainant about certain statements allegedly made by her; (2) denying defendant’s motion for a new trial upon the discovery of an exculpatory post on complainant’s MySpace page; and (3) permitting the State to introduce uncharged, prior bad act evidence. We affirm.
¶ 2. In July 2009, defendant was charged with one count of lewd and lascivious conduct with a child for allegedly grabbing the breast and buttocks of a fourteen-year-old girl and one count of obstruction of justice for purportedly telling her that he would shoot her if she told anyone about the encounter. Before trial, the State filed a “Notice of Intent to Offer Evidence of Prior Bad Acts” pursuant to Vermont Rule of Criminal Procedure 26, alleging that defendant previously touched the complainant’s breasts. Defendant filed a motion in limine, seeking to suppress such evidence. The State filed a motion in limine to exclude any evidence or questioning relating to complainant’s claim of a purported pregnancy and abortion when she was not in fact pregnant.
¶ 3. On the first day of trial, the court denied defendant’s motion in limine, concluding that evidence of any previous physical encounter with the complainant would provide context for the jury and show defendant’s intent in the charged assault; the evidence was thereby admissible to show a lack of mistake or accident, intent, common plan, and context. It granted the State’s motion in limine, finding the complainant’s alleged statements regarding an abortion more prejudicial than probative when analyzed under the Rape Shield Law and Vermont Rules of Evidence 608 and 403.
¶ 4. The jury returned a guilty verdict with respect to the charge of lewd and lascivious conduct and acquitted defendant on the charge of obstruction of justice. Thereafter, on March 29, 2010, defendant filed a motion for a judgment of acquittal and a motion for a new trial, both of which were denied. On June 21, 2010, defendant filed a second motion for a new trial based upon new evidence. Defendant offered as evidence a post on the complainant’s MySpace page which stated, “I wasn’t really sexually assaulted, I was just doing it for the attention.” The court again denied defendant’s request for a new trial. It concluded that defendant had not demonstrated that the testimony of the complainant was false; there was not enough evidence to warrant a new trial; and the alleged newly discovered evidence was merely impeaching. This appeal followed.
¶ 5. Defendant first contends that the trial court denied him his right to confront the complainant when it prohibited evidence suggesting that she had previously lied to a friend about having an abortion. The court precluded the evidence under the Rape Shield Law, 13 V.S.A. § 3255,  and V.R.E. 608(b) and 403. During trial, defendant argued that the State opened the door to such questioning when it asked complainant’s friend whether complainant ever lied about being touched before. Defendant immediately renewed his request to question complainant on whether she previously lied about obtaining an abortion, arguing that the evidence was relevant to undermine her credibility. Again, the judge denied the request, ruling that the prejudicial effect substantially outweighed the probative value. Post-trial, the court continued to find no error in such exclusion. In its decision on defendant’s motion for a new trial, the court reasoned that even though the question fell within the ambit of Rule 608(b), the evidence was unduly prejudicial and properly excluded.
¶ 6. The trial court has discretion to balance the evidence’s probative value against its prejudicial effect, and we will not disturb the trial court's ruling absent a showing of an abuse of that discretion. V.R.E. 403; State v. Cartee, 161 Vt. 73, 75, 632 A.2d 1108, 1110 (1993). “In criminal cases, however, the broad discretion of the trial court in evidentiary matters is limited by the defendant's constitutional right to confront witnesses against him  and by the demands of due process.” State v. Webster, 165 Vt. 54, 56, 675 A.2d 1330, 1332 (1996). However, the defendant bears the burden of showing that the exclusion of a particular question on cross-examination resulted in prejudice. State v. Berard, 132 Vt. 138, 148, 315 A.2d 501, 508 (1974).
¶ 7. In the present case, defendant wanted to use the evidence to show the complainant was not a truthful person. Pursuant to V.R.E. 608(b), “[t]he court may, in its discretion, admit evidence of specific instances of conduct through cross-examination to attack the witness’s credibility.” See State v. Forty, 2009 VT 118, ¶ 25, 187 Vt. 79, 989 A.2d 509; see also United States v. Riggio, 70 F.3d 336, 339 (5th Cir. 1995) (concluding that evidence of specific conduct may be inquired into on cross-examination of a witness pursuant to Rule 608 (b) only “if the evidence tends to test the truthfulness of testimony given on direct examination” as to a material issue of the case.). Defendant wanted to challenge the complainant’s credibility on cross-examination by inquiring about an instance of alleged untruthfulness that neither concerned a material issue of the case nor a topic of direct examination. See State v. Brochu, 2008 VT 21, ¶ 80, 183 Vt. 269, 949 A.2d 1035 (finding that credibility of witness is always open to attack, but the opportunity for such attack is not unrestricted, particularly with respect to collateral issues (citing Berard, 132 Vt. at 147, 315 A.2d at 508)).
¶ 8. And, while the question may have worked to undermine the complainant’s credibility, the defense already introduced evidence of the complainant’s character and reputation for untruthfulness from the complainant’s friend and the friend’s mother, indicating that the complainant had lied on several occasions and had a reputation for dishonesty in the community. The court may limit cross-examination “where the questions sought to be asked are repetitive or seeking information already elicited, ” Berard, 132 Vt. at 148, 315 A.2d at 508, or when their prejudicial effects outweigh their probative value. See V.R.E. 403. Defendant offers no more than a conclusory statement that he was prejudiced by his inability to further challenge the complainant’s veracity. See State v. Morrill, 127 Vt. 506, 514, 253 A.2d 142, 147 (1969) (concluding exclusion of questioning on cross-examination proper when defendant failed to make a showing of abuse of discretion by trial court or prejudice). We find no error.
¶ 9. Defendant next contends that the trial court erred in denying his motion for a new trial based upon a claim of newly discovered evidence. After trial, a post stating, “I wasn’t really sexually assaulted, I was just doing it for attention” appeared on the complainant’s MySpace page. Defendant argues this post demonstrates that the complainant lied under oath regarding the assault and affords him the right to a new trial based on the standards relating to false testimony and new evidence. The trial court denied the motion, finding: (1) that defendant failed ...