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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2011-282

                                          MAY TERM, 2012

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Arthur C. Bigelow                                     }    DOCKET NO. 525-5-10 Wmcr

                                                            Trial Judge: David Suntag

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

         Defendant appeals his conviction for violating a relief-from-abuse order, arguing that that
the trial court abused its discretion by allowing evidence of prior bad acts. We affirm.

        Defendant was charged with violating an existing relief-from-abuse order that prohibited
him from placing himself within 300 feet of his wife and children. The charge was based on him
watching his son’s baseball game from a distance that violated the order. There was no dispute
that an active relief-from-abuse order was in place at the time and that defendant was aware of
the restrictions in the order. Following a two-day trial, the jury convicted defendant of the
charge.

        On appeal, defendant argues that the trial court abused its discretion by allowing his wife
to retake the stand to testify about two incidents in which he abused her, one of which formed the
basis for the relief-from-abuse order that was the subject of this case. Defendant argues that the
only issue at trial was whether he violated the order, and thus his wife’s highly prejudicial
testimony concerning the incidents of abuse was irrelevant.

        The trial court stated in detail on the record why it was allowing defendant’s wife to
testify about the abusive incidents. The court noted that throughout the trial, beginning with
defense counsel’s opening statement to the jury, defendant presented a defense suggesting that
his wife had been improperly motivated regarding the incident in question. According to the
court, the defense presented testimony suggesting that defendant’s wife acted out of pettiness and
spite rather than any need to protect herself or her children. During trial, the court warned
defense counsel about this approach, at one point stating that the “hinges on that door are
beginning to squeak”—a reference to defendant opening the door to rebuttal testimony
concerning his character. Despite that warning, defendant later provided a non-responsive
answer during direct examination in which he questioned the basis for the relief-from-abuse
order and declared, “I wasn’t there to hurt anybody. I’m a peaceful person.” That declaration
resulted in the State requesting that defendant’s wife be allowed to retake the stand to rebut
defendant’s self-assessment of his character and the picture that the defense had painted of the
incident that led to the charge. The trial court stated that, because of the potential prejudice to
defendant, it probably would not have allowed defendant’s wife to testify about past incidents of
abuse despite suggestions of her improper motive for bringing her complaint. But, according to
the court, when defendant persisted with this theme to the point of questioning the
reasonableness of the order and declaring that he was a peaceful man, there was little choice but
to allow defendant’s wife to impeach his testimony as to his peaceful nature by recounting prior
incidents of abuse that ultimately led to the relief-from-abuse order.

        Upon review of the record, the trial court’s exercise of discretion in allowing the State to
present the testimony of defendant’s wife concerning his prior abuse can be sustained. See State
v. Longley, 2007 VT 101, ¶ 15, 182 Vt. 452 (“Trial courts have broad discretion to admit
evidence of a defendant’s prior bad acts, and we will reverse such a decision only when we find
an abuse of discretion resulting in prejudice.”). The record fully supports the court’s
characterization of the defense in general and defendant’s testimony specifically. Given the
circumstances, the court acted within its discretion in allowing testimony from defendant’s wife
to counter the defense’s suggestion that she acted out of spite against a peaceful man who posed
no threat to her or her children. See State v. Malshcuk, 2004 VT 54, ¶ 14, 177 Vt. 475 (mem.)
(“[W]here defense counsel seeks to impeach a witness’s credibility by painting an incomplete
picture of unwarranted bias, the State may complete the picture with appropriate detail.”)
(quotations omitted); see also Longley, 2007 VT 101, ¶¶ 16-17 (noting that V.R.E. 404(b)’s list
of legitimate evidentiary purposes for allowing prior bad act evidence is not exhaustive and that
State may introduce such evidence for other probative reasons, including to show “context” in
certain circumstances). Although testimony concerning the basis for the relief-from-abuse order
was not relevant as to whether defendant violated the order, that testimony became relevant so
that the State could respond to testimony questioning not only wife’s motivations for bringing
the complaint but also the necessity of the underlying order itself in light of defendant’s alleged
peaceful nature.

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice




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