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State v. McAllister

Supreme Court of Vermont

November 16, 2018

State of Vermont
Norman McAllister

          On Appeal from Superior Court, Franklin Unit, Criminal Division Martin A. Maley, J.

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

          Robert W. Katims and Joshua Stern, Law Clerk, of Hoff Curtis, Burlington, for Defendant-Appellant.

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

          SKOGLUND, J.

         ¶ 1. In 2015, defendant, Norman McAllister, was charged with one count of sexual assault, 13 V.S.A. § 3252(a)(1), and two counts of procuring a person for the purposes of prostitution, 13 V.S.A. § 2632(a)(2), based on allegations that defendant entered into a sex-for-rent arrangement with S.L., the complaining witness, and arranged for a third person to have sex with S.L. in exchange for payment of her electric bill. After a jury trial, defendant was convicted of one count of procuring a person for the purposes of prostitution-the sex-for-electric-bill arrangement-and acquitted of the other two charges. Defendant appeals this conviction. Because the trial court erred in (1) admitting inadmissible evidence of prior bad acts involving defendant's uncharged conduct with a deceased third party and (2) instructing the jury, mid-deliberations, to disregard unstricken and admitted testimony, we reverse and remand for a new trial.

         ¶ 2. A jury trial was held, during which both defendant and the State presented evidence of contradicting he-said-she-said narratives of the events that led to defendant's charges. Although defendant and S.L. agreed that S.L. worked and lived on defendant's goat farm and that they had had numerous sexual encounters, the majority of the details presented by the State were in stark contrast with those presented by defendant. The contrasting accounts of S.L.'s relationship with defendant are as follows.

         ¶ 3. It is uncontested that sometime in the fall of 2012, S.L. responded by telephone to defendant's online advertisement seeking someone to work on his goat farm, with the possibility of included housing, and that the parties spoke on the telephone to set up an in-person meeting. However, the details of those conversations are disputed. Defendant testified that they spoke once on the telephone, briefly and exclusively about the job, and then planned to meet in person. S.L., on the other hand, testified that she spoke to defendant several times on the telephone and that during these conversations, she expressed her desperation for the job and her willingness to go "above and beyond whatever normal duties" the job required. S.L. testified that later in the telephone conversations, after defendant confirmed that S.L. would be willing to do "anything" for the job and housing, it became clear to S.L. that defendant was propositioning her for sex in exchange for the job and housing. S.L. further testified that, because she needed to obtain stable and suitable housing and work to regain custody of her children, she agreed to defendant's proposition and set up a time for an in-person meeting.

         ¶ 4. The details of the parties' first meeting are also disputed. S.L. testified that after she arrived at the farm and briefly met two other workers, defendant took S.L. alone to an outbuilding. There, defendant asked S.L. if she knew why she was there, and when she affirmed that she understood this was the "sexual part of the interview," defendant said "[a]s a man, that's what I like to hear." Defendant then proceeded to "French kiss" S.L. while fondling her buttocks and vagina over her clothing and breasts under her bra. Defendant denied that this was how S.L.'s in-person interview occurred and testified that their sexual relationship did not begin until after his wife died later that year.

         ¶ 5. The nature of their sexual interactions was disputed. While S.L. testified that some of the sexual encounters were consensual, she also testified that she frequently felt "sick, disgusted, [and] embarrassed" after their sexual encounters, but continued participating because, based on her agreement with defendant, she understood that it was required to maintain the job and housing she needed to regain custody of her children. She also testified that several encounters were not consensual and those were the basis for the sexual-assault charge. These alleged nonconsensual encounters included one occurrence when defendant inserted his entire fist into S.L.'s vagina and another instance when defendant forced S.L. to engage in anal sex. During both alleged sexual assaults, S.L. told defendant she was in a lot of pain and wanted him to stop.

         ¶ 6. In contrast, defendant testified that S.L. offered herself to him as comfort when he was mourning the death of his wife. Defendant further denied that his sexual relationship was premised on the sex-for-rent-and-job arrangement described by S.L. and testified that it was "all lovey and fun." He claimed that S.L. mischaracterized both alleged nonconsensual interactions.

         ¶ 7. Defendant and S.L. also offered varying narratives on both prostitution charges. Prior to trial, both defendant and the State filed several motions and memoranda with the trial court regarding evidence to be excluded or to be offered in support of these charges. Defendant filed a motion in limine, seeking to exclude evidence of any alleged uncharged misconduct by defendant against S.L. and other individuals. Soon thereafter, the State filed a notice of its intent to introduce evidence of other acts to show defendant's motive, intent, and modus operandi: (1) to solicit sexual acts from and to engage in unwanted sexual conduct with women who sought housing or employment for themselves or another; and (2) to procure or solicit, or offer to procure or solicit, persons for the purpose of prostitution, lewdness, or assignation. Further, the State explained that the other-acts evidence introduced in connection with S.L. would be offered to give context to the charges against defendant. In response, defendant filed a memorandum supporting his motion in limine and opposing the introduction of the evidence of other acts offered by the State. Additionally, defendant filed a motion to dismiss and a memorandum in support, or in the alternative for a continuance, arguing that his due process rights were violated when the State allegedly impermissibly delayed disclosing evidence which showed that S.L. had perjured herself and had admitted to suffering from mental illness under oath in an unrelated past matter. The State opposed both motions.

         ¶ 8. The trial court held a hearing on both defendant's motion in limine regarding other bad acts and defendant's motion to dismiss or for a continuance. The trial court issued a written order denying defendant's motion to dismiss because it found that defendant had not met his burden of establishing that there had been a Brady violation.[1] The next day, the trial court issued a written decision on defendant's motion in limine, granting it in part and denying it in part. This decision analyzed defendant's acts with individual people, considering the acts under both Vermont Rules of Evidence 404(b) and 403, ruling on each in turn.

         ¶ 9. The court first considered evidence the State offered relating to S.L.'s mother-in- law, D.L.-specifically, evidence contained in sworn statements of D.L., S.L., and C.L. (S.L.'s husband and D.L.'s son), as well as recorded telephone conversations between defendant and D.L. during which defendant solicited sexual favors from D.L. in exchange for a guarantee of housing for C.L. The State argued that the evidence was admissible under both Rule 404(b) and Rule 403 to show plan and modus operandi and to provide context. The trial court determined it would not permit witnesses to testify about any alleged solicitation of sex from D.L. by defendant, but would permit witnesses to testify: that D.L. communicated with C.L. regarding her knowledge of the alleged sexual activity between S.L. and defendant; about communications between D.L. and defendant about S.L. and the allegations in the pending charges, to the extent that such statements were otherwise admissible; and that defendant and D.L. were in communication separately concerning rent owed by C.L.

         ¶ 10. The trial court's decision also considered evidence concerning defendant's numerous other sexual acts with S.L., including evidence that he asked S.L. to take and send pictures of her private parts to defendant, that he had S.L. engage in sexual acts with another man, and that defendant offered that S.L. engage in sexual acts with other persons. The State argued that the evidence provided context and a coherent narrative for the alleged instance of assault, and also supported the charged act of procuring sex in exchange for a reduction of rent. The trial court denied defendant's motion in limine, finding that that the evidence of other acts with S.L. was relevant and admissible, both as direct evidence supporting the prostitution charge relating to the sex-for-rent arrangement and as contextual evidence of the relationship between S.L. and defendant as to the other two charges. The trial court reserved its right to revisit any of these rulings as evidence was introduced during trial.

         ¶ 11. Throughout trial, a central piece of the State's evidence was a telephone call recorded pursuant to a warrant obtained by law enforcement investigating the allegations. In the call between S.L. and defendant, S.L. discussed various events with defendant that supported the State's prostitution charges-the alleged sex-for-rent arrangement between defendant and S.L. and the sex-for-electric-bill arrangement that defendant allegedly set up between his friend and S.L. During the telephone call, ...

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