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State v. Patten

Supreme Court of Vermont

August 31, 2018

State of Vermont
Roy K. Patten

          On Appeal from Superior Court, Addison Unit, Criminal Division Samuel Hoar, Jr., J.

          David Tarter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Joshua O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          REIBER, C.J.

         ¶ 1. Following a jury trial, defendant appeals his conviction of aggravated sexual assault. He argues that the trial court abused its discretion by: (1) allowing the State to present evidence of defendant's prior bad acts and (2) refusing to admit prior sexual conduct between complainant and defendant. We affirm.

         ¶ 2. The following facts are undisputed. In 2013, complainant and her boyfriend moved to Vermont with defendant and defendant's girlfriend. At first, the two couples lived next to each other in separate trailers, and later they moved into a house with separate apartments. A shared laundry area connected the apartments occupied by the two couples. In April 2014, defendant's girlfriend ended their relationship and moved out. In August 2014, complainant called her sister and said she wanted to leave Vermont and that defendant had been hurting her. Complainant's family came to Vermont to pick her up, and complainant told them that defendant had repeatedly sexually assaulted her. Complainant and her sister then reported the assault to the police. In September 2014, the police arrested defendant and charged him with aggravated sexual assault in violation of 13 V.S.A. § 3253(a)(9). After a trial in August 2016, the jury returned a guilty verdict. Defendant timely appealed.

         ¶ 3. On appeal, defendant argues that the court erred (1) in admitting testimony that defendant told complainant he was a sex offender immediately before the first sexual contact in April 2014 and (2) in excluding testimony regarding a masturbation incident in November 2013. He also argues the court erred in finding the masturbation incident was isolated and not part of an ongoing course of conduct. Defendant claims the errors were not harmless and requests that his conviction be reversed.

         ¶ 4. "We review issues regarding the admissibility of evidence for abuse of discretion." State v. Kelley, 2016 VT 58, ¶ 19, 202 Vt. 174, 148 A.3d 191. The trial court's discretion in deciding whether to admit evidence is broad. State v. Shippee, 2003 VT 106, ¶ 13, 176 Vt. 542, 839 A.2d 566 (mem.) (stating trial court's discretion is broad in deciding admissibility under V.R.E. 403). To prevail on an abuse-of-discretion claim, "defendant must prove the court either completely withheld its discretion or exercised it on grounds clearly untenable or unreasonable." Id. We review a trial court's findings of fact for clear error. Smith v. Drummond, 143 Vt. 175, 177, 465 A.2d 242, 243 (1983) (stating we "will not set aside findings of fact unless, taking the evidence in the light most favorable to the prevailing party and excluding the effects of modifying evidence, they are clearly erroneous" (quotation omitted)). In determining whether the trial court's findings were clearly erroneous, a "finding will not be disturbed merely because it is contradicted by substantial evidence; rather, an appellant must show there is no credible evidence to support the finding." Mullin v. Phelps, 162 Vt. 250, 260, 647 A.2d 714, 720 (1994) (quotation omitted). I. Sex-Offender Testimony

         ¶ 5. First, we consider defendant's claim that the court erred in admitting the sex- offender testimony. The pretrial motions and trial testimony presented the facts underlying this issue as follows. Complainant reported that in April 2014, after the couples had moved from the trailers to the house and after defendant's girlfriend moved out, defendant entered complainant's apartment through their shared laundry area while her boyfriend was not home. He told her he was a sex offender and then proceeded to touch her without her consent. Complainant testified at trial, "[H]e asked me you know who I am . . . . You know what a sex offender is, so I say yeah, I saw it on TV. . . . And he said-I am a sex offender he said." He then touched her hair, put his hands up her shirt, pulled her pants down, pulled his own pants down, and asked her to bend over. Complainant's boyfriend unexpectedly returned home, and defendant left. Complainant stated this was the first sexual encounter with defendant. According to defendant, complainant and the rest of his group of friends already knew he was a sex offender before they moved to Vermont; he never advised her specifically.

         ¶ 6. Prior to trial, the State provided notice pursuant to Vermont Rules of Evidence 404(b) that it intended to present testimony regarding the sex-offender comment. The State argued this evidence was relevant to complainant's lack of consent and not unfairly prejudicial to defendant. Defendant disputed the facts and asserted that, as this evidence would raise the issue of a prior criminal conviction, it was unfairly prejudicial. Following a hearing on September 21, 2015, and based on the parties' filings, the court decided the evidence was admissible. The court reasoned that the sex-offender comment, made within the context of the first sexual encounter, was relevant to defendant's intentions and plan and complainant's state of mind and lack of consent. The court also concluded the evidence's probative value was not outweighed by unfair prejudice.

         ¶ 7. On appeal, defendant first claims that the court failed to adequately weigh the testimony's potential prejudice and failed to adequately explain its decision. In defendant's view, the sex-offender comment implied a sex-offense conviction and amounted to evidence that defendant had a propensity for sexual assault, which made the evidence highly prejudicial. Defendant also asserts that the danger of unfair prejudice outweighed the evidence's probative value. He highlights the State's claim that the evidence was relevant to complainant's fear that defendant would hurt her; defendant argues the sex-offender comment was not relevant to the State's case because complainant testified that she feared defendant would hurt her boyfriend, but not herself. In reviewing a court's decision to admit evidence under Vermont Rule of Evidence 404(b), we assess both whether the evidence is "relevant and material" according to Rule 404(b) and whether the court abused its discretion in balancing the evidence's probative value and potential prejudice under Vermont Rule of Evidence 403. State v. Sanders, 168 Vt. 60, 62-63, 716 A.2d 11, 13 (1998); see also State v. Williams, 2010 VT 77, ¶ 12, 188 Vt. 405, 9 A.3d 315 ("[W]e will reverse [a decision under Rule 404(b)] only when we find an abuse of discretion resulting in prejudice.").

         A. Prior Conviction

         ¶ 8. We note at the outset that the sex-offender testimony was not evidence of a prior conviction. Defendant acknowledges this. Nonetheless, he suggests the testimony should be treated as such and references Rule 609 in urging a rigorous examination of its prejudicial effect. Under Rule 609, a prior conviction that does not involve untruthfulness is admissible to attack the credibility of a witness only if the conviction occurred within fifteen years, was a felony conviction, and" 'the probative value of this evidence substantially outweighs its prejudicial effect.'" State v. Atherton, 2016 VT 25, ¶ 17, 201 Vt. 512, 144 A.3d 311 (quoting V.R.E. 609). But there was no evidence offered at trial of a prior conviction. Therefore, there was no testimony subject to Rule 609 analysis. See State v. Collins, 582 P.2d 1179, 1183 (Mont. 1978) (affirming decision to admit evidence that defendant had told witness he was in prison for rape while emphasizing evidence proved defendant ...

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