Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-290

                                          MAY TERM, 2011

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }
    v.                                                 }    Superior Court, Franklin Unit,
                                                       }    Criminal Division
                                                       }
 Peter J. Mertens                                      }    DOCKET NO. 1446-12-09 Frcr

                                                            Trial Judge: A. Gregory Rainville

                          In the above-entitled cause, the Clerk will enter:

       Defendant appeals from a judgment of conviction, based on a jury verdict, of first degree
aggravated domestic assault. He contends the court erred in excluding evidence of the
complainant’s use of marijuana. We affirm.

         The record evidence may be summarized as follows. Complainant and defendant lived
together in St. Albans for about five years. Their relationship, however, began to deteriorate in
November 2009. Later that month, complainant visited New York to see her estranged husband
of fifteen years. When she returned on the afternoon of December 2, 2009, she told defendant
that she had slept with her husband and planned to resume their relationship. That evening, she
fell asleep on the living room couch.

         Complainant testified that she later awoke to a burning sensation on her face and
discovered that defendant had placed a rope around her neck and was strangling her.
Complainant struggled against the rope and managed to free herself. Defendant told her that he
was going to kill her and then himself. When complainant tried to reach her cell phone,
defendant grabbed it and broke it in half. Complainant then retrieved some clothes and left the
residence. She drove to a motel in Swanton and checked in for the evening. The motel manager
testified that complainant was crying and appeared to be upset.

        The next morning, complainant called her supervisor at work and told her about the
incident. The supervisor picked her up and drove her to the police station to make a report. The
supervisor recalled that complainant was hysterical and distraught; she observed red marks on
complainant’s neck that looked like burns. The officer who interviewed complainant also
observed marks on complainant’s face. Complainant told the officer that defendant had
strangled her during the night with a clothesline.

        Complainant consented to a search of her trailer, which the police conducted the
following day. They found a piece of white rope with knots in it that matched complainant’s
description of the rope used during the assault. The officers interviewed defendant, who
acknowledged that he became angry with complainant and broke her phone, but denied
assaulting her. Defendant testified to the same effect at trial.
       The jury returned a verdict of guilty, and the trial court denied a subsequent motion for
judgment of acquittal or new trial. Defendant was sentenced to a term of three to five years.
This appeal followed.

            Defendant contends the trial court erred in excluding evidence of complainant’s use of
marijuana. The issue arose when the State filed a motion in limine to exclude reference to any
alleged drug use by complainant based on a police officer’s statement that complainant was
initially reluctant to consent to the search of her home because there was a marijuana pipe in the
residence. The court addressed the motion before trial. Defense counsel opposed the motion,
asserting that defendant would testify that he picked up two empty beer bottles, a bag of
marijuana, and a pipe the morning after the incident. Counsel asserted that the evidence was
relevant because marijuana could “impair . . . a person’s ability to recall.” The court asked
whether defendant had “actually see[n] her consuming any of that,” and counsel acknowledged
that defendant had not. Because actual consumption was not “witnessed or admitted,” the court
found the evidence to be “way too speculative” and therefore only “marginally probative” and
concluded that its admission would “be more prejudicial than relevant and probative.”
Accordingly, the court granted the motion to exclude, subject to further consideration during the
course of trial.

            A trial court enjoys “broad discretion” under V.R.E. 403 in balancing the probative
value of evidence against its prejudicial effect, and we will not disturb its ruling absent an abuse
of that discretion. State v. Brochu, 2008 VT 21, ¶ 75, 183 Vt. 269; State v. Ovitt, 2005 VT 74,
¶ 8, 178 Vt. 605 (mem.). The trial court here acted well within its discretion in ruling that, as
relevant to complainant’s ability to recall the incident, the proffer of the mere presence of
marijuana and a marijuana pipe was speculative, and any “marginal” relevance was outweighed
by its potential prejudicial effect. In contrast, complainant had admitted consuming a beer that
night and was freely questioned by defense without objection as to that fact. Moreover, despite
the court’s failure to use the actual term “substantial,” its reasoning clearly demonstrates that it
found the minimal probative value of the evidence to be substantially outweighed by the
potential prejudice of introducing the subject of drug use without more evidence to support it.
Accordingly, we find no error in the trial court’s ruling, and no basis to disturb the judgment.

       Affirmed.

                                             BY THE COURT:


                                             _______________________________________
                                             Denise R. Johnson, Associate Justice

                                             _______________________________________
                                             Marilyn S. Skoglund, Associate Justice

                                             _______________________________________
                                             Brian L. Burgess, Associate Justice




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