[Copyrighted Material Omitted]
This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Essex Crim. Walter M. Morris, Jr., J. (Ret.), Specially Assigned.
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, Marshall Pahl, Appellate Defender, and Megan Rowe and Casey Ryder, Law Clerks (On the Brief), Montpelier, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Maley, Supr. J., Specially Assigned.
Maley, Supr. J.,
[¶1] Defendant Gordon Noyes, Jr., appeals from his convictions for disorderly conduct and simple assault by mutual affray following a jury trial. He argues that reversal is warranted because: (1) the prosecutor improperly elicited evidence suggesting that defendant was having an affair with his stepdaughter; (2) the court erroneously allowed the State to confront its witness with a prior inconsistent statement; (3) the prosecutor improperly led witnesses and made comments on the evidence; and (4) the evidence was insufficient to support his disorderly conduct conviction. We affirm.
[¶2] This case stems from a fight between defendant and his brother. Various witnesses provided conflicting accounts of the altercation. The State presented evidence that, on the day in question, brother visited defendant's home. When brother arrived, defendant was talking to his stepdaughter on the computer. Brother testified that defendant immediately began to yell, stating " you were running your mouth at the bar the other night." Defendant then accused his brother of telling people that defendant was having an affair with the defendant's stepdaughter. Brother denied saying anything regarding the defendant and his stepdaughter. Nevertheless, according to brother, defendant pushed him, and brother pushed back. Defendant then grabbed his brother, and eventually both fell to the floor.
[¶3] Defendant's daughter provided a conflicting account of the events. She testified that the two men briefly argued and that brother left the home after defendant " politely asked him to leave, and he did." She recalled then that " he stormed back in and he started screaming at my dad, and he shoved my dad into the stove." Daughter also claimed that brother pushed the defendant to the floor. Another household
member, defendant's stepson, recalls that both men argued and that they fell to the floor. Defendant then told his brother to leave. By all accounts the men then continued their dispute outside with brother exiting first and defendant following close behind. Once outside the fracas began again with both men shouting and taunting each other. Again, certain details of the events vary between witnesses.
[¶4] Brother testified that, when the men were outside, daughter pushed him. Daughter recalls that she was trying to separate brother from defendant. At one point during the fight, defendant got on his knees, telling his brother to " take your best shot." There is no evidence that brother attempted to strike defendant, but according to daughter, while defendant was kneeling, brother exposed himself to defendant. Shortly thereafter, according to brother, defendant struck him in the face. The police were called, and a police officer observed a scrape on brother's chin.
[¶5] A neighbor and acquaintance of both men also testified for the State. Neighbor was not present during the fight, but she testified that defendant told her that he beat brother up and that he " punched [brother] so hard that he went flying from the trash to his mom's bedroom." She maintained that defendant's story would " change all the time." Neighbor eventually acknowledged signing a typed statement, which was apparently notarized, in which she asserted that defendant told her that he had lied to the police. Neighbor testified that she was living with brother and his wife at the time that this statement was written, and that brother's wife had typed the statement for her. She indicated that the document she signed was not notarized and that the notarization must have been added at a later time. On cross-examination, neighbor acknowledged writing another statement, closer in time to the fight. In that statement, she wrote that brother told her that he had pushed defendant across the room, slammed defendant to the ground, and that, when defendant was on his knees, brother had put his hands on his own penis and made a crude comment.
[¶6] On cross-examination, the prosecutor asked daughter who defendant had been talking to when brother arrived. The prosecutor then pointed out defendant's stepdaughter in the courtroom. He asked if the stepdaughter was " married to your father at the present time," and if there was " a relationship between the two of them at the present time." Defendant objected to these questions after they had been answered, and, given the untimely objection, the court allowed the answers to stand.
[¶7] Daughter testified that she did not know why the men were arguing. The prosecutor questioned how that was possible given that she was present during the fight. Defendant objected, arguing that evidence relating to the basis for the argument was irrelevant, inappropriate, and prejudicial. The court overruled the objection, finding that evidence about defendant's relationship with his stepdaughter was not being offered for its truth but rather to show the cause of the parties' dispute.
[¶8] The prosecutor then called brother as a rebuttal witness and returned to the cause of the parties' argument. Brother repeated that defendant was angry because he thought he was talking about defendant's relationship with his stepdaughter. Brother indicated that, at that time, defendant was married to his stepdaughter's mother. Brother again denied telling others that defendant was having an affair with his ...