Appeal from Superior Court, Bennington Unit, Criminal
Division David A. Howard, J.
Alexander Burke, Bennington County Deputy State's
Attorney, Bennington, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Rebecca Turner,
Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. In September 2014, defendant was tried and
convicted of three felony counts of lewd and lascivious
conduct with a child that occurred between June 1, 2004 and
June 1, 2006. He appeals his convictions, arguing that the
trial court erred in admitting consciousness-of-guilt
evidence and then failing to give a limiting instruction on
the use of that evidence and that the prosecutor's
closing argument violated the "golden rule" by
asking the jurors to put themselves in the position of a
party-here, the purported victim. We reverse and remand.
2. K.S., the child complainant, was twelve years old when she
disclosed to her mother that mother's former boyfriend,
defendant, had touched her on multiple occasions when she was
between four and six years old. When asked why she waited
several years to disclose this touching, K.S. testified she
waited because she did not want to put any more pressure or
stress on her mother. The disclosure came during an argument
on the phone with her mother, who was upset that K.S. had
gone to a basketball game when she was supposed to be
attending math tutoring with her aunt. The following day,
K.S. and her mother went to the police station to be
interviewed and give a written statement.
3. On February 28, 2013, the State filed an information with
the court charging defendant with three counts of lewd and
lascivious conduct with a child and applied for an arrest
warrant. On March 1, the court issued the warrant requested.
Defendant was arrested on the warrant on September 24, 2013,
in Pennsylvania, and subsequently arraigned in Vermont on the
charges. In October 2013, the State filed a Vermont Rule of
Criminal Procedure 26 notice of its intent to offer, in its
case in chief, evidence of defendant's behavior when
arrested, arguing it was admissible as evidence of guilt.
Defendant filed an objection, arguing that the encounter with
the Pennsylvania trooper was seven years removed from the
date of the alleged charged offenses, did not involve false
information, and did not mislead.
4. After a hearing on the Rule 26 notice, the trial court
issued an order allowing the testimony of the Pennsylvania
state trooper who effectuated defendant's arrest, finding
that the probative value of the evidence outweighed any
prejudice to defendant. It is this so-called
consciousness-of-guilt evidence that defendant challenges on
5. In September 2013, Trooper Michael Brown of the
Pennsylvania State Police served the arrest warrant at the
home where defendant was believed to be living. When
defendant answered the door, the trooper asked him if he was
Lamar Scales. Defendant identified himself as Shahid Nur and
provided the trooper with a credit or debit card with that
name on it. The trooper then told him he would be
fingerprinted to confirm identification, and a woman present
in the apartment told defendant to just tell the officer who
he was. Defendant then said that he was Lamar Scales but that
he had changed his name to Shahid Nur.
6. Defendant argues the court erred in admitting the
testimony of the Pennsylvania trooper for two
reasons: first, there was no foundation that his
response to the trooper was probative of consciousness of
guilt as to the specific charges here, and second, because it
was unduly prejudicial. We agree.
7. This Court has long recognized that so-called
consciousness-of-guilt evidence has "little probative
value, " State v. Unwin, 139 Vt. 186, 193, 424
A.2d 251, 255 (1980), even when the prosecutor can show that
it is relevant to a "legitimate issue" other than
propensity to commit the crime charged. State v.
Winter, 162 Vt. 388, 392, 648 A.2d 624, 626 (1994)
(quotation omitted); see State v. Giroux, 151 Vt.
361, 366, 561 A.2d 403, 406 (1989) (upholding jury
instruction that flight has "very, very limited
8. We have addressed this issue most often when evidence of
flight is offered as consciousness of guilt. In State v.
Perrillo, we called such evidence inherently ambiguous
and dependent upon multiple inferential steps:
The probative value of evidence of flight as circumstantial
evidence of guilt depends upon the confidence placed on four
inferential steps: "from the defendant's behavior to
flight[, ] . . . from flight to consciousness of guilt[, ] .
. . from consciousness of guilt to consciousness of guilt
concerning the crime charged[, ] . . . from consciousness of