State v. Sanders

• Decision Date: 24 April 1998
• Docket Number: No. 97-003,97-003
• Citation: 168 Vt. 60,716 A.2d 11
• Parties: STATE of Vermont, v. Mark SANDERS.
• Court: Vermont Supreme Court

Page 11

716 A.2d 11

STATE of Vermont, v. Mark SANDERS.

No. 97-003.

Supreme Court of Vermont.

April 24, 1998.

Motion for Reargument Denied June 10, 1998.

William H. Sorrell, Attorney General, and Susan R. Harritt, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Robert Appel, Defender General, and Henry Hinton, Appellate Attorney, Montpelier, for Defendant-Appellant.

Before AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

MORSE, Justice.

Defendant appeals his jury conviction of aggravated domestic assault, 13 V.S.A. § 1043(a)(2), claiming that the court erred by (1) permitting the State to introduce "prior bad acts" evidence without giving defendant proper notice, (2) admitting evidence that defendant had assaulted the victim on prior occasions, and (3) allowing the State to question the victim about prior assaults after she recanted that they had occurred. We affirm.

The assault charge stemmed from a confrontation on March 31, 1996, in Burlington. The victim, defendant's live-in girlfriend, came home that evening with a friend, Jodi Bell. She was surprised to find defendant home because he had told her earlier that day he was moving out due to problems in their relationship. As the victim and her friend were getting ready to go out for the night, they heard defendant breaking glass and smashing things around the house. Frightened, the women locked themselves in the bathroom. Bell then ran next door to call the police, and when she returned, she found defendant and the victim standing in the kitchen. Bell, to protect the victim, inserted herself in between them. Defendant then picked up a knife and said "someone is going to die ... who's it gonna be?" The State charged defendant with aggravated domestic assault for being armed with a deadly weapon and threatening to use that weapon on a household member.

Over two months prior to trial, the State sent defense counsel a letter listing several "prior bad acts" they intended to introduce at trial. Defendant brought a motion in limine to exclude the evidence, but the judge allowed the State to introduce two of the prior bad acts to go to the issue of intent. The first was an incident that occurred on December 30, 1995, in which the victim asked defendant to leave the apartment. In response to her request, he choked her and threw her across the room, giving her a bloody nose. The second was an incident that occurred on January 6, 1996, when defendant took victim's car without permission and screamed threats at her, saying he would never leave without a fight. During trial, it was revealed that these incidents actually occurred on February 10, 1996, and February 18, 1996, respectively. However, on the stand, the victim recanted most of the substantive facts of these prior sworn statements.

Defendant first argues that the court erred by permitting the State to introduce "prior bad acts" evidence without giving defendant proper notice. V.R.Cr.P. 26(c) requires the State to furnish to defendant, at least seven days prior to trial, a written statement setting forth any evidence it intends to offer under V.R.E. 404(b) or V.R.E. 609. Defendant argues that since the dates of the prior bad acts were wrong in the written statement, he did not receive sufficient notice under V.R.Cr.P. 26(c).

The purpose of V.R.Cr.P. 26(c) is to "inform the defendant of crimes the State intends to introduce and to allow the defendant time to respond by a motion in limine." State v. Houle, 162 Vt. 41, 45, 642 A.2d 1178 1181 (1994). If defendant actually brings a motion in limine to exclude prior bad act evidence, he cannot then claim insufficient notice since the purpose of V.R.Cr.P. 26(c) has been met. See State v. Kelley, 163 Vt. 325, 330, 664 A.2d 708, 711 (1995). Here, the fact that the State had the wrong dates associated with the prior bad acts does not render the notice invalid since defendant was aware of the substance of the evidence and brought a motion in limine to exclude it. The trial court did not err by permitting the State to introduce evidence of defendant's prior bad acts since the purpose of V.R.Cr.P. 26(c) was fulfilled.

Defendant next argues that the court erred by admitting evidence that defendant had assaulted the victim on prior occasions. Defendant claims that the State is merely using this evidence to show his propensity for criminal behavior, and therefore it should be excluded under V.R.E. 404(b) and 403. The State argues that the evidence was offered to show why the victim was afraid of defendant and to prove that defendant had the requisite intent under 13 V.S.A. § 1043(a)(2) to "threaten" the victim with the knife.

In reviewing the trial court's admission of evidence under 404(b), we must decide whether the evidence was both relevant and material to the subject cause of action, State v. Parker, 149 Vt. 393, 398, 545 A.2d 512, 515 (1988), and if so, whether the trial court abused its discretion in deciding that the introduction of such evidence was more probative than prejudicial under V.R.E. 403. See id. at 400-01, 545 A.2d at 516-17.

Here, we need not decide whether the prior bad acts may be admissible solely to show fear or intent because the evidence was relevant also to portray the history surrounding the abusive relationship, providing the needed context for the behavior in issue. The purpose of establishing defendant's history of abusing the victim is not to show his general character for such abuse, but to provide...