2013 VT 55


State v. Lawrence (2011-126)
 
2013 VT 55
 
[Filed 09-Aug-2013]
 
  NOTICE:  This
opinion is subject to motions for reargument under V.R.A.P. 40 as well as
formal revision before publication in the Vermont Reports.  Readers are
requested to notify the Reporter of Decisions by email at:
JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections
may be made before this opinion goes to press.
 
 
 

2013 VT 55

 

No. 2011-126

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Criminal Division


 


 


Gary Lawrence, Sr.


October Term, 2012


 


 


 


 


Michael
  S. Kupersmith, J.


 

 
Thomas Donovan, Jr., Chittenden County State’s Attorney, and
Pamela Hall Johnson, Deputy
  State’s Attorney, Burlington, for Plaintiff-Appellee.
 
Allison N. Fulcher of Martin &
Associates, Barre, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
¶ 1.            
SKOGLUND, J.  Defendant appeals his conviction of lewd and
lascivious conduct with a child following a jury trial.  Defendant asserts
that the trial court erred in: (1) prohibiting cross-examination of complainant
about certain statements allegedly made by her; (2) denying defendant’s motion
for a new trial upon the discovery of an exculpatory post on complainant’s
MySpace page; and (3) permitting the State to introduce uncharged, prior bad
act evidence.  We affirm.

 
¶
2.            
In July 2009, defendant was charged with one count of lewd and
lascivious conduct with a child for allegedly grabbing the breast and buttocks
of a fourteen-year-old girl and one count of obstruction of justice for
purportedly telling her that he would shoot her if she told anyone about the
encounter.  Before trial, the State filed a “Notice of Intent to Offer
Evidence of Prior Bad Acts” pursuant to Vermont Rule of Criminal Procedure 26,
alleging that defendant previously touched the complainant’s breasts.
 Defendant filed a motion in limine, seeking to suppress such evidence.
 The State filed a motion in limine to exclude any evidence or questioning
relating to complainant’s claim of a purported pregnancy and abortion when she
was not in fact pregnant. 
¶
3.            
On the first day of trial, the court denied defendant’s motion in
limine, concluding that evidence of any previous physical encounter with the
complainant would provide context for the jury and show defendant’s intent in
the charged assault; the evidence was thereby admissible to show a lack of
mistake or accident, intent, common plan, and context.  It granted the
State’s motion in limine, finding the complainant’s alleged statements
regarding an abortion more prejudicial than probative when analyzed under the
Rape Shield Law and Vermont Rules of Evidence 608 and 403.  
¶
4.            
The jury returned a guilty verdict with respect to the charge of lewd
and lascivious conduct and acquitted defendant on the charge of obstruction of
justice.  Thereafter, on March 29, 2010, defendant filed a motion for a
judgment of acquittal and a motion for a new trial, both of which were denied.
 On June 21, 2010, defendant filed a second motion for a new trial based
upon new evidence.  Defendant offered as evidence a post on the
complainant’s MySpace page which stated, “I wasn’t really sexually assaulted, I
was just doing it for the attention.”  The court again denied defendant’s
request for a new trial.  It concluded that defendant had not demonstrated
that the testimony of the complainant was false; there was not enough evidence
to warrant a new trial; and the alleged newly discovered evidence was merely
impeaching.  This appeal followed.
¶
5.            
Defendant first contends that the trial court denied him his right to
confront the complainant when it prohibited evidence suggesting that she had
previously lied to a friend about having an abortion.  The court precluded
the evidence under the Rape Shield Law, 13 V.S.A. § 3255,[1] and V.R.E. 608(b) and 403.  During
trial, defendant argued that the State opened the door to such questioning when
it asked complainant’s friend whether complainant ever lied about being touched
before.  Defendant immediately renewed his request to question complainant
on whether she previously lied about obtaining an abortion, arguing that the
evidence was relevant to undermine her credibility.  Again, the judge
denied the request, ruling that the prejudicial effect substantially outweighed
the probative value. Post-trial, the court continued to find no error in such
exclusion.  In its decision on defendant’s motion for a new trial, the
court reasoned that even though the question fell within the ambit of Rule
608(b), the evidence was unduly prejudicial and properly excluded. 
¶
6.            
The trial court has discretion to balance the evidence’s probative value
against its prejudicial effect, and we will not disturb the trial court's
ruling absent a showing of an abuse of that discretion.  V.R.E. 403; State v. Cartee, 161 Vt. 73, 75, 632 A.2d 1108,
1110 (1993).  “In criminal cases, however, the broad discretion of
the trial court in evidentiary matters is limited by the defendant's constitutional
right to confront witnesses against him[2]
and by the demands of due process.”  State v. Webster,
165 Vt. 54, 56, 675 A.2d 1330, 1332 (1996).  However, the defendant
bears the burden of showing that the exclusion of a particular question on
cross-examination resulted in prejudice.  State v.
Berard, 132 Vt. 138, 148, 315 A.2d 501, 508 (1974).  
¶
7.            
In the present case, defendant wanted to use the evidence to show the
complainant was not a truthful person.  Pursuant to V.R.E. 608(b), “[t]he
court may, in its discretion, admit evidence of specific instances of conduct
through cross-examination to attack the witness’s credibility.”  See State
v. Forty, 2009 VT 118, ¶ 25, 187 Vt. 79, 989 A.2d 509; see also United States v. Riggio, 70
F.3d 336, 339 (5th Cir. 1995) (concluding that evidence of specific conduct may
be inquired into on cross-examination of a witness pursuant to Rule 608(b) only “if the
evidence tends to test the truthfulness of testimony given on direct examination” as to a material issue of the
case.).  Defendant wanted to challenge the complainant’s credibility on
cross-examination by inquiring about an instance of alleged untruthfulness that
neither concerned a material issue of the case nor a topic of direct
examination.  See State v. Brochu, 2008 VT 21, ¶ 80, 183 Vt.
269, 949 A.2d 1035 (finding that credibility of witness is always open to
attack, but the opportunity for such attack is not unrestricted, particularly
with respect to collateral issues (citing Berard, 132 Vt. at 147, 315
A.2d at 508)).
¶
8.            
And, while the question may have worked to undermine the complainant’s
credibility, the defense already introduced evidence of the complainant’s
character and reputation for untruthfulness from the complainant’s friend and
the friend’s mother, indicating that the complainant had lied on several
occasions and had a reputation for dishonesty in the community.  The court
may limit cross-examination “where the questions sought to be asked are
repetitive or seeking information already elicited,” Berard, 132 Vt. at
148, 315 A.2d at 508,  or when their prejudicial
effects outweigh their probative value.  See V.R.E. 403.  Defendant
offers no more than a conclusory statement that he was prejudiced by his
inability to further challenge the complainant’s veracity.  See State
v. Morrill, 127 Vt. 506, 514, 253 A.2d 142, 147
(1969) (concluding exclusion of questioning on cross-examination proper when
defendant failed to make a showing of abuse of discretion by trial court or
prejudice).  We find no error. 
¶
9.            
Defendant next contends that the trial court erred in denying his motion
for a new trial based upon a claim of newly discovered evidence.  After
trial, a post stating, “I wasn’t really sexually assaulted, I was just doing it
for attention” appeared on the complainant’s MySpace page.  Defendant
argues this post demonstrates that the complainant lied under oath regarding
the assault and affords him the right to a new trial based on the standards
relating to false testimony and new evidence.  The trial court denied the
motion, finding: (1) that defendant failed to demonstrate that the
complainant’s testimony was false; and (2) that the newly discovered evidence was
at best “merely impeaching.”  
¶
10.        
“Where the denial of a motion for a new trial is challenged, abuse of
discretion must be shown.”  Sachse v. Lumley, 147
Vt. 584, 587, 524 A.2d 599, 601 (1987).  This Court, in State v.
Robillard, held that when a claim of false testimony is brought to light “a
new trial will be required when: (1) the court is reasonably well satisfied
that the testimony given by a material witness is false; (2) without that
testimony the jury probably would have reached a different conclusion;
and (3) the party seeking the new trial was taken by surprise when the false
testimony was given or did not know of its falsity until after the trial.”
 146 Vt. 623, 629, 508 A.2d 709, 713 (1986).
¶
11.        
At a hearing on defendant’s motion for new trial, complainant denied
posting the message.  She further informed the court that her former
friend—a family friend of defendant—had access to her account and password.
 Detective Frisbie of the Burlington Police Department also testified that
because MySpace expunges its records every six months, it would be impossible
to ascertain from its records which computer had been used to post the message
or the location of the computer.  Without evidence to show that the
complainant posted the comment or that the post was true, the court was not
satisfied that the posting provided reliable evidence to show complainant’s
testimony at trial was false.  
¶
12.        
Notwithstanding the fact that complainant was a
material witness in the trial, evidence of a post on the complainant’s unsecure
MySpace page offers only speculation as to authorship.  Given that
an adverse witness in the case had access to complainant’s MySpace page for the
purpose of posting messages, and that the post itself did not include
information that tended to show that complainant, as opposed to the friend, was
the author, the trial court did not abuse its discretion in denying the motion
for a new trial under the Robillard standard.  
¶
13.        
Nor was there error under the more general framework applicable to newly
discovered evidence as set forth in State v. Miller, 151 Vt. 337, 338,
560 A.2d 376, 377 (1989).[3] 
In Miller, this Court held that to warrant a new trial on the basis of
newly discovered evidence, defendant must meet five requirements: (1) it must
appear that the new evidence would probably change the result upon retrial; (2)
the new evidence must have been discovered subsequent to trial; (3) the
evidence could not have been discovered earlier by the exercise of due
diligence; (4) the evidence is material; and (5) the evidence is not merely
cumulative or impeaching.  Id.  Given the amount of evidence
offered at trial by defendant as to the veracity of the complainant and
defendant’s inability to establish that complainant actually posted the
message, the trial court did not err in concluding that the newly discovered
evidence would not probably change the result upon retrial.  
¶
14.        
Defendant also challenges the court’s holding that the post was merely
impeaching evidence and posits that whether the complainant actually authored
the post and what weight it should be given is a question for the jury to
decide.  He cites two recent cases, People v. Valdez, 135 Cal.
Rptr. 3d 628 (Ct. App. 2011) and Tienda v. State, 358 S.W.3d 633 (Tex.
Crim. App. 2012), which address the admissibility and authentication of the
social media pages.  But, because the MySpace evidence here was offered in
support of a new trial and the dispute was not over the admissibility of the
evidence, we find the cases unpersuasive.        
¶
15.        
In State v. Bruno, we recognized that “a trial court’s assessment
of the credibility of both a witness who offers newly discovered testimony and
the testimony itself is simply part of the evaluation of the quality of the
evidence” that the trial court must undertake in a motion for a new trial based
on newly discovered evidence.  2012 VT 79, ¶ 16, ___Vt.
___, 60 A.3d 610.  Here, based on the testimony provided at the
hearing, the trial court assessed the evidence and found the quality
lacking.  We find no error.  
¶
16.        
Defendant also argues that the trial court impermissibly allowed the
State to introduce uncharged prior bad act evidence.  During trial, the
State introduced evidence that defendant had previously touched the
complainant’s breasts approximately a year before the alleged incident.
However, the complainant could not discern whether the initial touch was
intentional. 
Q. 
Was the touch that had happened at Kristina's house different in your mind to
the touch that happened outside of Myers Furniture?  
 
A.    
Yes.  
 
Q.    
And how—how was it different?  
 
A.    
Because when I was at Kristina's, it just wasn't—like he wasn't grabbing. 
Like he just placed his hand and then took it off and started walking again,
and I don't know if it was intentional, but at Myers, I could tell it was
intentional.
 
¶
17.        
The court concluded that the evidence went to “a lack of mistake or
accident, intent, common plan, [and] context.”  Defendant contends
that the testimony is irrelevant, more prejudicial than probative, and
constitutes reversible error.  
¶ 18.         In
reviewing the trial court’s admission of prior bad act evidence under Rule
404(b), this Court determines whether the evidence was relevant and material to
the cause of action, and if so, whether its admission was more probative than
unfairly prejudicial.  State v. Laprade, 2008 VT 83, ¶ 14, 184 Vt.
251, 958 A.2d 1179.  The trial court enjoys
“broad discretion in determining whether evidence is relevant, and will not be
overruled absent an abuse of discretion.”  See State
v. Bernier, 157 Vt. 265, 268, 597 A.2d 789, 791 (1991).
 Nonetheless, we have consistently acknowledged the need to be “vigilant in reviewing the admission of evidence of
uncharged misconduct, because once jurors learn of uncharged misconduct, they
tend to use an entirely different calculus of probabilities in deciding whether
to convict.”  State v. Forbes, 161 Vt. 327, 330,
640 A.2d 13, 16 (1997) (quotation and alteration omitted). 
¶
19.        
Evidence of prior bad acts is inadmissible to show defendant’s
propensity to engage in criminal conduct.  V.R.E. 404(b); see State v.
Moran, 141 Vt. 10, 19-20, 444 A.2d 879, 884 (1992).  Such evidence
may, however, be admissible for other purposes, such as motive, opportunity,
intent, knowledge, plan, identity, or absence of mistake or accident.  V.R.E. 404(b).  Of course, the probative value of the
evidence must not be substantially outweighed by its prejudicial effect.  V.R.E. 403.  The State contends that defendant’s prior
breast touching is relevant to show the historical relationship between parties
or the absence of mistake or accident in the second touching.  We
disagree.  
¶
20.        
While we agree that prior bad act evidence may, at times, be necessary
to explain the defendant’s motivations or plan, we cannot allow the exception
to swallow the rule and permit any bad act evidence as mere context for the
crime.  See State v. Kelley, 163 Vt. 325, 329, 664 A.2d 708, 710
(1995) (holding, for limited circumstances, that evidence of defendant's prior
course of conduct was “necessary to explain to the jury defendant's motive for
the murder” by placing “an otherwise random and bizzare act” in context).
 This Court has permitted context evidence in certain instances of
domestic abuse “to provide the jury with an
understanding of defendant's actions on the date in question.”  State v. Sanders, 168 Vt. 60, 62, 716 A.2d 11, 13 (1998).  For
example, in State v. Sanders, this Court affirmed the admission of
evidence of the defendant’s prior assaults on the complainant to “portray the
history surrounding the abusive relationship” where the complainant “recanted most
of the substantive facts” concerning the previous attacks on the stand.  Id.
at 61-63, 716 A.2d at 12-13.  We concluded that
knowing the relationship between the defendant and the complainant was
essential in that case because “[a]llegations of a single act of domestic
violence, taken out of its situational context, [were] likely to seem
‘incongruous and incredible’ to a jury.”  Id. at 62, 716 A.2d at 12.  “Previous incidents of domestic abuse
were also relevant to put the [complainant]’s recantation of prior statements
into context for the jury.”  Id. at 62, 716 A.2d
at 13. 
¶
21.        
Here, unlike Sanders, there is no need
to provide the jury with an understanding of defendant’s actions as there is no
long line of abuse, making the charged encounter so “incongruous and incredible
to a jury.”  Id. at 62, 716 A.2d at 12 (quotation
omitted).  In fact, the relationship between defendant and the
complainant is not so entrenched or matted with abuse that any explanation
regarding their previous encounter is necessary.  Furthermore, it
is hard to see the relevance of defendant’s alleged “prior bad act” when the
witness could not testify that the prior touching was intentional.  The
trial court impermissibly stretched the bounds of V.R.E. 404(b) by allowing the
previous touching to come in as context evidence.  
¶
22.        
Here, prior bad act evidence was not admissible to show lack of mistake
or accident, as the defendant never claimed a defense based on some type of
mistake or accident.  See United States v. Ward, 190 F.3d 483, 489
(6th Cir. 1999) (rejecting absence of mistake as a permissible purpose for the
admission of evidence when the defendant’s “defense was not that she mistakenly
thought she was selling powdered sugar instead of cocaine”); see also State
v. Kolibas, 2012 VT 37, ¶ 6, 191 Vt. 474, 48 A.3d 610.  In fact,
defendant denies the encounter in its entirety and thus undermines the “absence
of mistake” exception.  As a result, the trial court erred in admitting
defendant’s “prior bad act.” 
¶
23.        
The error, however, was harmless.  Error is harmless if we can say
beyond a reasonable doubt that the jury would have convicted defendant absent
the error.  See State v. Lipka, 174 Vt. 377, 384-85, 817 A.2d 27,
34 (2002); see also V.R.Cr.P. 52(a) (“Any error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded.”).
 In assessing harm from erroneous admission of evidence, we look to, among
other things, the strength of the offending evidence; and the overall strength
of the prosecution’s case without the offending evidence.  Lipka,
174 Vt. at 385, 817 A.2d at 34; State v. Tribble, 2012 VT 105, ¶ 41, __
Vt. __, 67 A.3d 210. 
¶
24.        
 Here, the offending testimony is weak.  Complainant admits
that the previous contact was likely unintentional or an accident, offering
little danger of inflaming the jury to punish defendant or causing the jury to
see defendant as a bad man.  See State v. Bruyette,
158 Vt. 21, 31, 604 A.2d 1270, 1275 (1993).  In addition, the
mother of complainant’s friend, who was informed of the incident months later,
testified that she did not believe that initial incident ever took place
because “if it happened, [complainant] should have told me right off.” 
The mother then went on to testify about the complainant’s reputation for
dishonesty.  Further, the testimony concerning the previous bosom brush
had little bearing on the prosecution’s case, as it failed to provide
defendant’s motive, intent, or scheme—rather it informed the jury of a previous
ambiguous, if not accidental, encounter.  Moreover, the State
 introduced strong evidence that after the charged incident
complainant was visibly upset, crying, and shaken, among other things.
 Accordingly, while the introduction of defendant’s prior contact with the
complainant was admitted in error, the error was harmless.  As such, we
affirm the decision of the superior court.
Affirmed.

 
 


 


FOR THE
  COURT:


 


 


 


 


 


Associate Justice

 





[1]
 On these facts, the application of the Rape Shield Law is not
self-evident; however, because defendant failed to object, we do not address
the applicability of the rule.
 


[2]  The Sixth Amendment to the United
States Constitution guarantees the right of the accused to confront the
witnesses against him and has been incorporated to apply to state proceedings
through the Fourteenth Amendment.  U.S. Const. amend.
VI; Pointer v. Texas, 380 U.S. 400, 403 (1965).
 The Confrontation Clause affords the criminal defendant “wide latitude . . . on cross-examination for
the purpose of showing who and what the witness is, and that he is unreliable,
prejudiced, or biased.”  State v. Berard, 132 Vt.
138, 147, 315 A.2d 501, 508 (1974) (citation omitted).  Yet the
Clause's protections are not limitless.  State v.
Fuller, 168 Vt. 396, 403–04, 721 A.2d 475, 481 (1998).  The
Confrontation Clause gives the defendant “ ‘an
opportunity for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish.’ ”  State v. Brochu, 2008 VT 21, ¶ 87, 183
Vt. 269, 949 A.2d 1035 (quoting Delaware v. Fensterer, 474 U.S. 15, 20
(1985)).  In particular, the Clause applies only to evidence that is
relevant and otherwise admissible under the rules of evidence.  See Fuller,
168 Vt. at 403–04, 721 A.2d at 481.
 


[3]
 Where, as here, a defendant petitions the court for a new trial on the
basis of newly discovered false testimony, the trial court need not employ both
the Robillard and Miller standard.  The more specific Robillard
standard will suffice.  Because the trial court analyzed the evidence
under both standards here, we will as well.  See State
v. Charbonneau, 2009 VT 86, ¶ 14, 186 Vt. 583, 980 A.2d 279 (mem.).




