Appeal from Superior Court, Franklin Unit, Criminal Division
Martin A. Maley, J.
Tartter, Deputy State's Attorney, Montpelier, for
W. Katims and Joshua Stern, Law Clerk, of Hoff Curtis,
Burlington, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
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
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. 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
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, ...