State v. Forbes, 91-450

• Decision Date: 19 November 1993
• Docket Number: No. 91-450,91-450
• Citation: 161 Vt. 327,640 A.2d 13
• Parties: STATE of Vermont v. Donald T. FORBES.
• Court: Vermont Supreme Court

Page 13

640 A.2d 13

161 Vt. 327

STATE of Vermont v. Donald T. FORBES.

No. 91-450.

Supreme Court of Vermont.

Nov. 19, 1993.

Motion for Reargument Denied Feb. 1, 1994.

Dan M. Davis, Windham County State's Atty., and Karen R. Carroll, Deputy State's Atty., Brattleboro, for plaintiff-appellee.

Thomas A. Zonay of Carroll, George & Pratt, Rutland, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

MORSE, Justice.

A jury convicted defendant of lewd and lascivious conduct with a child and sexual assault. See 13 V.S.A. §§ 2602, 3252(a)(3). The victim was his 11-year-old daughter. He claims the trial court abused its discretion by admitting testimony about uncharged sexual misconduct with his daughter, his history of violent outbursts in her presence and expert opinion about her physical condition, all of which impermissibly boosted her credibility. We affirm.

On November 15, 1989, defendant's daughter reported to a teacher that her father had been sexually abusing her. The child's report prompted an investigation that uncovered allegations that defendant had sexually abused her and her older sister for years. According to the daughter, defendant first initiated sexual contact with her in 1987. After the first incident, the daughter told her mother what had happened, but her mother did not believe her. Thereafter, the sexual abuse periodically recurred in the home at various times during the day and night. The daughter said that at one point she was on the verge of telling a school counselor about the abuse but her older sister persuaded her to stay silent. The older sister testified, without objection, that the victim had told her on more than one occasion that their father was sexually molesting the victim.

Defendant was charged and convicted for an incident of sexual abuse occurring on November 14, 1989. The daughter testified that while her mother was downstairs on the evening of November 14, 1989, her father came into her room and touched her vaginal area with his fingers. The child further testified that her father also tried to "stick his penis in my mouth." The mother and older sister testified that they had been at home on the night in question, but were unaware of what had occurred. The mother said defendant had slept on the couch and she did not see him go upstairs that night.

Defendant took the stand and denied that any assault ever occurred. He stated that he did not go to his daughter's room on the night in question. Rather, he fell asleep on the living room couch in front of the television and did not get up until the next morning. The defense attempted to account for the daughter's allegations by suggesting that she had fabricated the story because her father had threatened two weeks earlier to send her away to "reform school."

The State sought to refute the inference of recent fabrication by showing that fear of her father's temper had kept her from coming forward sooner. The daughter recounted that she was afraid of her father because he had shot a gun in the direction of her mother and "broke things, put holes in the walls, ... stuck my dog's head in the wall ... [and] almost put me through a wall ... because I didn't finish cleaning the dining room and the living room before he got home."

I.

Defendant objected without success to the evidence about the prior sexual and violent misconduct. The oft-litigated issue whether uncharged misconduct is admissible is governed by V.R.E. 404(b), which states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

See 22 C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5239 (1978) (most frequently litigated criminal issue).

We must 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. See Imwinkelried, Uncharged Misconduct, 1986 A.B.A. Sec.Crim.J. 6, 8 (Summer) (quoting H. Kalven & H. Ziesel, The American Jury 179 (1966)). In fact, several empirical studies tend to confirm prosecutors' beliefs that the introduction of a defendant's uncharged misconduct can "easily tip the balance against the defendant." Imwinkelried at 8 (referring to studies conducted by the Chicago Jury Project, the London School of Economics, and the National Science Foundation Law and Social Science Project); see State v. McCarthy, 156 Vt. 148, 155-58, 589 A.2d 869, 873-75 (1991) (misconduct evidence can have an "incendiary" impact on the jury).

The State sought to justify admission of the sexual history and violent behavior to prove "opportunity," "intent," "motive," and "plan." Defendant, however, did not put any of these factors in issue. He did not argue that opportunity to abuse his daughter was lacking, for example, because he did not reside with her. Nor did defendant concede that some contact had occurred, but his intent was innocent, for example, to check and care for his daughter's hygiene. Instead, defendant categorically denied that any sexual abuse had ever occurred.

We need not reach the reasons cited by the State for justifying admission of the evidence of uncharged sexual abuse because, in our view, the evidence was admissible for a purpose other than those articulated by the State. The history of defendant's incestuous relationship with his daughter was particularly relevant because it supplied the context within which the charged incidents of sexual contact occurred. The point of establishing the existence of an incestuous relationship was not to make an issue of defendant's general character for sexually abusing females of minor age. Rather, the point was to establish specifically defendant's propensity to engage in sexual contact with his daughter as an object of his desire. See Baldridge v. State, 32 Ark.App. 160, 798 S.W.2d 127, 128 (1990) (in cases of incest, character evidence is admissible under Rule 404(b) to show defendant's proclivity toward a specific act with a person with whom he has an intimate relationship).

Child sexual abuse is "the involvement of dependent, developmentally immature children in sexual activities that they do not fully comprehend," and incest is one form of sexual abuse usually "carried out under actual or threatened violence, or it may be nonviolent, even tender, insidious, collusive, and secretive." R. Kingman & D. Jones, Incest and Other Forms of Sexual Abuse, in The Battered Child 286 (R. Helfer & R. Kempe, eds., 4th ed. 1987); see also D. Bersharov, Recognizing Child Abuse 93-95 (1990) (describing family incest as pattern of behavior taking place over long period of time and which characteristically involves secrecy, denial, power imbalances, and isolation). Allegations of a single act of sexual contact between parent and child, taken out of its situational context of secrecy, oppression, and recurrence, are likely to seem incongruous and incredible.

The daughter's allegations of sexual contact on one night would have seemed incredible absent the context of a continuous sexual relationship with her father. For some, any occurrence of incest is a difficult truth to grasp. See also Apel, Custodial Parents, Child Sexual Abuse, And The Legal System: Beyond Contempt, 38 Am.U.L.Rev. 491, 499 (1989) ("Despite the fact that an estimated twenty-two percent of Americans have been sexually abused as children, many people, including juries and judges, find it difficult to believe that it happens.... [I]t is even more difficult to convince them that a seemingly 'ordinary' parent is capable of, much less guilty of, sexually abusing a child."). Jurors may believe that fathers ordinarily do not molest their daughters only once and that the child must not be telling the truth without evidence of a pattern. D. Finkelhor, Child Sexual Abuse 93-94 (1984) ("That adults will sexually exploit a child is a disturbing fact for many people, and they often admit to having difficulty understanding why someone would do such a thing.").

Defendant takes the position that evidence of uncharged misconduct must be excluded unless it is offered for one of the purposes specified in V.R.E. 404(b) but no other. This "exclusionary" view is followed to some extent. See Imwinkelried, supra, at 9 (exclusionary approach formerly dominant in three-fifths of states and majority of federal circuits but is now increasingly disfavored). We have held, however, that the language of V.R.E. 404(b) supports admitting character evidence for purposes in addition to those delineated as "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Rule 404(b) allows evidence of uncharged misconduct for any purpose other than proving the defendant's bad character. The list of admissible purposes is not exclusive, and the phrase "such as" in the rule denotes an intent that the list be considered illustrative rather than exhaustive. See State v. Robinson, 158 Vt. 286, 289, 611 A.2d 852, 854 (1992) (list of permissible uses under V.R.E. 404(b) is illustrative, not exclusive); State v. Bruyette, 158 Vt. 21, 27, 604 A.2d 1270, 1272 (1992) (evidence is admissible for "some other legitimate issue in the case").

Defendant also argues that a...