State v. Discola

Citation184 A.3d 1177
Decision Date19 January 2018
Docket NumberNo. 16–303,16–303
CourtUnited States State Supreme Court of Vermont
Parties STATE of Vermont v. John DISCOLA

184 A.3d 1177

STATE of Vermont

No. 16–303

Supreme Court of Vermont.

October Term, 2017
January 19, 2018
Reargument Denied April 4, 2018

Sarah George, Chittenden County State's Attorney, and Pamela Hall Johnson, Burlington, and David Tartter, Montpelier, Deputy State's Attorneys, for Plaintiff–Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant–Appellant.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.


184 A.3d 1181

¶ 1. Defendant John Discola appeals his conviction of one count of lewd and lascivious conduct, 13 V.S.A. § 2601, and two counts of lewd or lascivious conduct with a child, 13 V.S.A. § 2602. Defendant asserts that: (1) the evidence was insufficient to demonstrate that he had engaged in lewd and lascivious conduct or that he had engaged in such conduct with a child with sexual intent; (2) the witnesses' pretrial identifications of defendant were suggestive and prejudicial; and (3) the State's prejudicial closing remarks altered the trial outcome. We affirm.

¶ 2. The State presented the following evidence during the jury trial below. M.G., the mother of one of the alleged victims, G.G., testified that on May 24, 2015, she had taken G.G.—who was then fifteen-years-old—to Burlington to participate in the city marathon. The two were waiting in Burlington's Battery Park for the race to start when M.G. noticed that G.G. was upset. G.G. explained that she wanted to move because a man had "touched" her. G.G. pointed to the man, whom M.G. described at trial as tall, thin, dirty, with hair to his shoulders, untrimmed facial hair, wearing a backpack, and with tattoos on his right arm. The man looked back at M.G. and smiled "like he knew we were upset and talking about what had happened." She called the Burlington Police Department the next day to report the incident.

¶ 3. G.G. testified regarding the specific circumstances of this touching. She stated that she felt someone brush up against her and around her buttocks. Approximately two minutes later, it happened again, this time a "stronger brush," which felt like "a hand on ... [her] butt." She turned around and saw a man she described at trial as tall, with long brown hair, an untrimmed dirty beard, and wearing a backpack. Moments later, G.G. felt a hand on her buttocks once more. This time the touch was "firmer." When she glanced back, G.G. saw the same tall man standing behind her staring with a "smug" expression. It was at this point that G.G. asked her mom if they could move.

¶ 4. On the same morning, fourteen-year-old A.T. was in Burlington's Waterfront Park to watch the end of the marathon with her mother and sister, sixteen-year-old G.T. A.T. testified that while meeting her sister in the park she "felt something brush up against [her] butt." A.T. looked behind her and saw a tall, thin man with long hair and a long beard holding a water bottle. She didn't think much of this incident because of the crowd size in the park and she kept walking. After going about five feet, she felt touching on her buttocks again, which to her felt like a water bottle. A.T. walked to the front of the Echo Aquarium at the waterfront, at which point she saw the same man coming towards her. She turned her back to him and soon felt another touch on her buttocks. A.T. recounted that it felt like a finger rubbing across her buttocks. When A.T. turned around, the man was smiling at her. She then told her mother about this incident, and by that time, the man had walked up the hill and out of the park. A.T. made a report to the Burlington Police Department a few days later.

184 A.3d 1182

¶ 5. Detective Matthew Sweitzer of the Vermont State Police was on marathon detail in Waterfront Park when he noticed a man, later identified as defendant, walking near a group of teenage girls. Detective Sweitzer determined that defendant was not connected to the group because he was not engaging in their conversation or interacting with them in any other way. Detective Sweitzer was alarmed by defendant's close proximity to this group. He noticed that defendant tried to stay right behind the girls as they walked and that his hands were in "an odd position." Detective Sweitzer began to follow defendant and finally approached him to ask what he was doing in the park. Defendant answered that he was meeting a friend for burritos. Detective Sweitzer snapped a picture of defendant, later admitted at trial.

¶ 6. Curtis Russell, a race participant, was in Battery Park waiting for his leg of the relay race to start when he noticed a man in the park who seemed out of place with the race participants. This man was wearing a backpack, sweatshirt, and cargo pants and he was staring at people in a way that made Russell suspicious. Russell watched him for approximately five minutes and watched as the man stopped to stare at a woman, positioned himself behind her, and then grabbed her buttocks in a "good grip." The woman acted "surprised" and turned around to see what had happened, but the man had moved away. Russell took a picture of the man, subsequently determined to be defendant.

¶ 7. During a pretrial hearing in November 2015, G.G., A.T., and G.T. each identified defendant in court. On the eve of trial, defendant moved to suppress these pretrial identifications under Chapter I, Article 10 of the Vermont Constitution, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and Vermont Rule of Evidence 403 because, he argued, the identifications were suggestive and unreliable. Defendant contended that the pretrial hearing provided the witnesses their first opportunity to identify defendant, as they had not participated in a photo lineup; A.T. and G.T. had seen a picture of defendant in the newspaper right before the hearing; the pretrial identification occurred five months after the alleged event; and the identification occurred in a setting where defendant was in court and seated at defense counsel's table wearing a prison uniform and shackles.

¶ 8. The court denied this motion, holding that while the circumstances surrounding the pretrial identification were suggestive, the identifications bore sufficient indicia of reliability. The court noted that G.G. had testified based on memory; the witnesses provided descriptions of defendant at the hearing that matched descriptions they had given in May—including specific details that would not have been available by looking at the photo; and the witnesses were highly certain in their identifications. During the trial, G.G., A.T., and G.T. again each identified defendant in the courtroom, over the objection of defense counsel.

¶ 9. After the close of the State's evidence at trial, defendant moved for a judgment of acquittal under Vermont Rule of Criminal Procedure 29. Defendant argued that the alleged acts did not amount to lewd and lascivious conduct under 13 V.S.A. § 2601, and that the evidence was insufficient to prove that he grabbed the minor victims with the specific intent to gratify sexual desires required under 13 V.S.A. § 2602.

¶ 10. The court held that whether the alleged acts were lewd and lascivious was a factual matter best left to the jury to determine according to prevailing community standards of decency. The court also

184 A.3d 1183

held that the evidence supported the charge that defendant accosted the minor victims with intent to gratify sexual desires. After the court denied the motion for acquittal, defendant rested without presenting evidence.

¶ 11. In its closing argument, the State described defendant's argument that the behavior in question was not lewd and lascivious as "sad," and admonished the jury to "send a message" to the girls and women, defendant, and the community that what happened in this case would not be tolerated. Defendant did not object to these statements during the argument.

¶ 12. The jury convicted defendant of one count of lewd and lascivious conduct under § 2601 (relating to his touching the unidentified woman) and two counts of lewd or lascivious conduct with a child under § 2602 (relating to his touching A.T. and G.G.). The court sentenced defendant concurrently to two to five years' incarceration for the lewd and lascivious charge under § 2601, and five to fifteen years for each of the two counts of lewd or lascivious conduct with a child under § 2602.

¶ 13. On appeal, defendant argues that: (1) his conduct was not lewd and lascivious, and the State failed to prove that he touched the minor victims with lustful intent; (2) the pretrial identifications of defendant by G.G., A.T., and G.T. should have been suppressed because they were suggestive, prejudicial, and unreliable; and (3) the State's prejudicial closing remarks affected the jury deliberations and, ultimately, defendant's constitutional rights. We disagree and affirm.

I. Lewd and Lascivious Conduct

¶ 14. Defendant argues that the trial court should have granted his motion for judgment of acquittal because, even if proven, his conduct was not lewd and lascivious. Essentially, defendant argues that "while the touching may have been done without permission and wrong, it is not criminal" because "[m]ere contact with the clothed buttock under the circumstances presented here...

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    • United States
    • United States State Supreme Court of Vermont
    • 9 Octubre 2020 witness." Benoit, 158 Vt. at 361, 609 A.2d at 231 (quoting Millard, 18 Vt. at 578); see also State v. Discola, 2018 VT 7, ¶ 20, 207 Vt. 216, 184 A.3d 1177 ("[C]onduct meets the statutory requirement of 'openness' if it is done in the presence of at least one other witness."); In re A.C.......
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    ...of expert testimony on the reliability of eyewitness identifications in appropriate cases); State v. Discola , 2018 VT 7, ¶¶ 30-31, 207 Vt. 216, 184 A.3d 1177 (joining Kansas and Utah in abandoning witness certainty as a factor in evaluating the reliability of eyewitness identifications and......
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    ...1986), that "more precisely define the focus of the relevant inquiry" than Biggers ); State v. Discola , 2018 VT 7, ¶¶ 30-31, 184 A.3d 1177, 1188-89 (Vt. 2018) (abandoning witness certainty as a factor for evaluating reliability).6 I joined the unanimous opinion of the Court in Smiley . Tha......
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