Appeal from Superior Court, Chittenden Unit, Criminal
Division A. Gregory Rainville, J.
George, Chittenden County State's Attorney, and Pamela
Hall Johnson, Burlington, and David Tartter, Montpelier,
Deputy State's Attorneys, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1 Defendant John Discola appeals his conviction of one count
of lewd and lascivious conduct, 13 V.S.A. § 2601, and
two counts of lewd or lascivious conduct with a child, 13
V.S.A. § 2602. Defendant asserts that: (1) the evidence
was insufficient to demonstrate that he had engaged in lewd
and lascivious conduct or that he had engaged in such conduct
with a child with sexual intent; (2) the witnesses'
pretrial identifications of defendant were suggestive and
prejudicial; and (3) the State's prejudicial closing
remarks altered the trial outcome. We affirm.
2. The State presented the following evidence during the jury
trial below. M.G., the mother of one of the alleged victims,
G.G., testified that on May 24, 2015, she had taken G.G.- who
was then fifteen-years-old-to Burlington to participate in
the city marathon. The two were waiting in Burlington's
Battery Park for the race to start when M.G. noticed that
G.G. was upset. G.G. explained that she wanted to move
because a man had "touched" her. G.G. pointed to
the man, whom M.G. described at trial as tall, thin, dirty,
with hair to his shoulders, untrimmed facial hair, wearing a
backpack, and with tattoos on his right arm. The man looked
back at M.G. and smiled "like he knew we were upset and
talking about what had happened." She called the
Burlington Police Department the next day to report the
3. G.G. testified regarding the specific circumstances of
this touching. She stated that she felt someone brush up
against her and around her buttocks. Approximately two
minutes later, it happened again, this time a "stronger
brush, " which felt like "a hand on . . . [her]
butt." She turned around and saw a man she described at
trial as tall, with long brown hair, an untrimmed dirty
beard, and wearing a backpack. Moments later, G.G. felt a
hand on her buttocks once more. This time the touch was
"firmer." When she glanced back, G.G. saw the same
tall man standing behind her staring with a "smug"
expression. It was at this point that G.G. asked her mom if
they could move.
4. On the same morning, fourteen-year-old A.T. was in
Burlington's Waterfront Park to watch the end of the
marathon with her mother and sister, sixteen-year-old G.T.
A.T. testified that while meeting her sister in the park she
"felt something brush up against [her] butt." A.T.
looked behind her and saw a tall, thin man with long hair and
a long beard holding a water bottle. She didn't think
much of this incident because of the crowd size in the park
and she kept walking. After going about five feet, she felt
touching on her buttocks again, which to her felt like a
water bottle. A.T. walked to the front of the Echo Aquarium
at the waterfront, at which point she saw the same man coming
towards her. She turned her back to him and soon felt another
touch on her buttocks. A.T. recounted that it felt like a
finger rubbing across her buttocks. When A.T. turned around,
the man was smiling at her. She then told her mother about
this incident, and by that time, the man had walked up the
hill and out of the park. A.T. made a report to the
Burlington Police Department a few days later.
5. Detective Matthew Sweitzer of the Vermont State Police was
on marathon detail in Waterfront Park when he noticed a man,
later identified as defendant, walking near a group of
teenage girls. Detective Sweitzer determined that defendant
was not connected to the group because he was not engaging in
their conversation or interacting with them in any other way.
Detective Sweitzer was alarmed by defendant's close
proximity to this group. He noticed that defendant tried to
stay right behind the girls as they walked and that his hands
were in "an odd position." Detective Sweitzer began
to follow defendant and finally approached him to ask what he
was doing in the park. Defendant answered that he was meeting
a friend for burritos. Detective Sweitzer snapped a picture
of defendant, later admitted at trial.
6. Curtis Russell, a race participant, was in Battery Park
waiting for his leg of the relay race to start when he
noticed a man in the park who seemed out of place with the
race participants. This man was wearing a backpack,
sweatshirt, and cargo pants and he was staring at people in a
way that made Russell suspicious. Russell watched him for
approximately five minutes and watched as the man stopped to
stare at a woman, positioned himself behind her, and then
grabbed her buttocks in a "good grip." The woman
acted "surprised" and turned around to see what had
happened, but the man had moved away. Russell took a picture
of the man, subsequently determined to be defendant.
7. During a pretrial hearing in November 2015, G.G., A.T.,
and G.T. each identified defendant in court. On the eve of
trial, defendant moved to suppress these pretrial
identifications under Chapter I, Article 10 of the Vermont
Constitution, the Due Process Clause of the Fourteenth
Amendment to the United States Constitution, and Vermont Rule
of Evidence 403 because, he argued, the identifications were
suggestive and unreliable. Defendant contended that the
pretrial hearing provided the witnesses their first
opportunity to identify defendant, as they had not
participated in a photo lineup; A.T. and G.T. had seen a
picture of defendant in the newspaper right before the
hearing; the pretrial identification occurred five months
after the alleged event; and the identification occurred in a
setting where defendant was in court and seated at defense
counsel's table wearing a prison uniform and shackles.
8. The court denied this motion, holding that while the
circumstances surrounding the pretrial identification were
suggestive, the identifications bore sufficient indicia of
reliability. The court noted that G.G. had testified based on
memory; the witnesses provided descriptions of defendant at
the hearing that matched descriptions they had given in
May-including specific details that would not have been
available by looking at the photo; and the witnesses were
highly certain in their identifications. During the trial,
G.G., A.T., and G.T. again each identified defendant in the
courtroom, over the objection of defense counsel.
9. After the close of the State's evidence at trial,
defendant moved for a judgment of acquittal under Vermont
Rule of Criminal Procedure 29. Defendant argued that the
alleged acts did not amount to lewd and lascivious conduct
under 13 V.S.A. § 2601, and that the evidence was
insufficient to prove that he grabbed the minor victims with
the specific intent to gratify sexual desires required under
13 V.S.A. § 2602.
10. The court held that whether the alleged acts were lewd
and lascivious was a factual matter best left to the jury to
determine according to prevailing community standards of
decency. The court also held that the evidence supported the
charge that defendant accosted the minor victims with intent
to gratify sexual desires. After the court denied the motion
for acquittal, defendant rested without presenting evidence.
11. In its closing argument, the State described
defendant's argument that the behavior in question was
not lewd and lascivious as "sad, " and admonished
the jury to "send a message" to the girls and
women, defendant, and the community that what happened in
this case would not be tolerated. Defendant did not object to
these statements during the argument.
12. The jury convicted defendant of one count of lewd and
lascivious conduct under § 2601 (relating to his
touching the unidentified woman) and two counts of lewd or
lascivious conduct with a child under § 2602 (relating
to his touching A.T. and G.G.). The court sentenced defendant
concurrently to two to five years' incarceration for the
lewd and lascivious charge under § 2601, and five to
fifteen years for each of the two counts of lewd or
lascivious conduct with a child under § 2602.
13. On appeal, defendant argues that: (1) his conduct was not
lewd and lascivious, and the State failed to prove that he
touched the minor victims with lustful intent; (2) the
pretrial identifications of defendant by G.G., A.T., and G.T.
should have been suppressed because they were suggestive,
prejudicial, and unreliable; and (3) the State's
prejudicial closing remarks affected the jury deliberations
and, ultimately, defendant's constitutional rights. We
disagree and affirm.
and Lascivious Conduct
14. Defendant argues that the trial court should have granted
his motion for judgment of acquittal because, even if proven,
his conduct was not lewd and lascivious. Essentially,
defendant argues that "while the touching may have been
done without permission and wrong, it is not criminal"
because "[m]ere contact with the clothed buttock under
the circumstances presented here was not lustful, gross and
wanton indecency in sexual relations." In addition,
defendant argues that the State failed to prove ...