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State v. Lawrence

Supreme Court of Vermont

August 9, 2013

STATE of Vermont
v.
Gary LAWRENCE, Sr.

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Thomas J. 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.

¶ 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

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was false; there was not enough evidence to warrant a new trial; and the alleged newly discovered evidence was merely ...


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