State v. Jones, 92-521

• Decision Date: 16 July 1993
• Docket Number: No. 92-521,92-521
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Leo JONES.

Page 840

631 A.2d 840

160 Vt. 440

STATE of Vermont v. Leo JONES.

No. 92-521.

Supreme Court of Vermont.

July 16, 1993.

Scot Kline, Chittenden County State's Atty., and Pamela Hall Johnson, Deputy State's Atty., Burlington, for plaintiff-appellee.

John F. Evers and Kevin E. Brown of Langrock Sperry & Wool, Middlebury, for defendant-appellant.

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

GIBSON, Justice.

Defendant was convicted by jury of two counts of sexual assault in violation of 13 V.S.A. § 3252(a)(3) and two counts of lewd and lascivious conduct in violation of 13 V.S.A. § 2602. All four counts arose from allegations that defendant had sexually abused his stepdaughter. On appeal, he claims the court erred (1) in denying his motion for acquittal on the two charges of sexual assault because the State failed to prove the requisite sexual act, (2) in denying his motion for a new trial because unfairly prejudicial physical evidence was improperly admitted and three witnesses were improperly permitted to testify, and (3) in denying his motions for mistrial because the State improperly cross-examined defendant concerning uncharged sexual misconduct and the child's mother improperly revealed to the jury that she had obtained a relief-from-abuse order against defendant. We affirm.

I.

Defendant first argues that he is entitled to a judgment of acquittal on both counts of sexual assault because the State failed to produce clear, precise, and explicit evidence of the sexual acts charged. The informations charge defendant with engaging in unlawful sexual conduct with a person under the age of sixteen, consisting of contact between the penis and the vulva. See 13 V.S.A. § 3251(1) (defining sexual act). Defendant relies on State v. Prime, 137 Vt. 340, 342, 403 A.2d 270, 271 (1979), in which we held that a judgment of acquittal should have been granted because the "record [did] not establish contact, nor [were] we convinced that the vagueness [was] due to the defendant's underdeveloped vocabulary." Id. Defendant contends that, as in Prime, the complainant's testimony in the instant case was insufficient to establish the element of contact.

In reviewing a motion for judgment of acquittal, the issue is whether the evidence, viewed in the light most favorable to the State, fairly and reasonably tends to show the defendant guilty beyond a reasonable doubt. State v. French, 152 Vt. 72, 81-82, 564 A.2d 1058, 1063 (1989). "[G]uilt in a criminal case may be proved by circumstantial evidence alone, if it is proper and sufficient in itself." State v. Messier, 146 Vt. 145, 150, 499 A.2d 32, 37 (1985). "Contact" requires " 'mere touching, however slight.' " Id. (quoting State v. Bourn, 139 Vt. 14, 16-17, 421 A.2d 1281, 1282 (1980)). In Messier, we upheld a conviction of two counts of sexual assault although there was no direct evidence of the sexual acts charged. A witness recounted that the defendant had undressed the child and partially undressed himself, but the bodies then obscured the witness's observations. We held that, given the relative positions of the bodies, as described by the witness, the State had satisfied its burden. Id. at 151, 499 A.2d at 37.

Here, the child was thirteen years old when she testified. She told the jury that defendant took off her clothes and then undressed himself. She stated that he touched her breasts and her vagina with his hands and his penis and that he was lying on top of her. She then testified:

Q: What was he trying to do with his penis?

A: Put it inside me.

....

Q: Do you remember how it felt when he was trying to put his penis inside of you?

A: Hurt.

Regarding the second incident, the child's testimony was similar. This evidence was sufficient for the jury to find the element of contact beyond a reasonable doubt.

II.

Defendant argues next that he is entitled to a new trial because the trial court improperly admitted several items of physical evidence that unfairly prejudiced him. A motion for a new trial is a matter within the discretion of the trial court, and therefore, the court's ruling will be upheld unless discretion was abused or withheld. State v. Miller, 151 Vt. 337, 339, 560 A.2d 376, 377 (1989).

First, defendant claims that the court erred by admitting a love poem containing sexual connotations allegedly written by defendant to the child. The poem was admitted to show that defendant's motive in committing the charged acts was to satisfy his sexual desires for her. At trial, defendant contended that he wrote the poem to the child's mother, although it expressly stated the child's name. The parties disputed whether the poem was written nine months prior to the first act charged, or three months after the last act charged. Defendant also claims that the court improperly admitted a birthday card from defendant to the child and a cassette tape of songs that defendant recorded and gave to the child along with a copy he made of the lyrics. This evidence was also allowed as evidence of defendant's motive in committing the charged act. The parties agree that defendant gave the card, the tape and the lyrics to the child two to three months after the last act charged.

On appeal, defendant maintains that the poem was not probative of his motive because it was too remote in time--nine months prior--or because it was post-incident--three months after. He argues that the card and the tape cannot be relevant to show motive because they were post-incident acts. According to defendant, the physical evidence was irrelevant and unfairly prejudicial and thus admitted in violation of V.R.E. 404(b), 403, and 402.

Evidence of other acts by the defendant are not admissible to prove character or that the defendant "acted in conformity therewith." V.R.E. 404(b). Such evidence is admissible, however, for other purposes, such as to prove motive, intent or plan. Id. Even where the evidence is offered for a valid purpose, it "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." V.R.E. 403. The court must exercise discretion in weighing the evidence under V.R.E. 403. State v. Cardinal, 155 Vt. 411, 414, 584 A.2d 1152, 1154 (1990).

Defendant cites no authority to support his contention that an act committed nine months prior to the incident charged is too remote to be probative of his motive. We have previously upheld the admission of prior acts that occurred over a period of four years to establish a modus operandi, Id. at 414, 584 A.2d at 1154, but also have concluded that evidence of sexual misconduct that occurred ten and twelve years prior to the act charged was too remote in time to prove a pattern, plan, or modus operandi. State v. Hurley, 150 Vt. 165, 169, 552 A.2d 382, 385 (1988). In the instant case, the State's evidence indicated that defendant wrote the poem in November 1988, and the four incidents allegedly occurred between the summer of 1989 and January 1990. Given the continuing nature of the sexual molestations, we cannot conclude that the court abused its discretion by ruling that the poem was probative of defendant's motive for the charged acts, despite the interval of several months.

Defendant provides no authority to support his argument that post-incident acts cannot be probative of his motive in committing the charged acts. We reject his contention that subsequent acts are inadmissible per se. See United States v. Ramirez, 894 F.2d 565, 569 (2d Cir.1990) (declining to adopt per se rule that subsequent similar-act evidence lacks relevancy); United States v. Hurley, 755 F.2d 788, 790 (11th Cir.1985) (subsequent acts may be used to show intent under Fed.R.Evid. 404(b)); State v. Tolman, 121 Idaho 899, 828 P.2d 1304, 1310 (1992) (rejecting rule that evidence of subsequent misconduct is per se inadmissible). In the context of this case, the gifts, poems and songs that defendant gave to the child over a period of a year and a half were probative of his motive in committing the charged acts, whether pre- or post-incident. They were properly admitted under V.R.E. 404(b) because they fairly indicated defendant's continuing sexual interest in the child. Moreover, the evidence was relevant and thus met the requirement of V.R.E. 402.

We also conclude that the court did not abuse its discretion by ruling that the physical evidence was admissible under V.R.E. 403. To be excluded under V.R.E. 403, the probative value of the evidence must be substantially outweighed by unfair prejudice. V.R.E. 403; see State v. Bruyette, 158 Vt. 21, 30, 604 A.2d 1270, 1274 (1992). "Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury's sympathies" or to provoke horror or a desire to punish. Bruyette, 158 Vt. at 31, 604 A.2d at 1274. We find none of these circumstances in this case. The gifts, poems and songs were not presented to raise the jury's emotions, nor were they likely to incense the jury to punish defendant for acts other than those charged. Cf. State v. McCarthy, 156 Vt. 148, 155, 589 A.2d 869, 873 (1991) (grave danger of prejudice from evidence of other crimes because jury may want to prevent defendant from escaping punishment for those crimes). The physical evidence was probative of defendant's motive and therefore prejudicial to defendant but not unfairly so. Id. at 158, 589 A.2d at 875 (evidence must be excluded only if unfairly prejudicial to defendant).

III.

Defendant next argues that the trial court erred in denying his motion for a new trial because it improperly allowed three witnesses to testify. First, defendant objected to the State calling April Wescott as a witness in its case-in-chief because the State failed to disclose its intent to call her as a witness until the day of the jury drawing, the day before trial began. The court allowed Ms. Wescott to testify that, during one summer, the complainant had told her that defendant "had tried to do something to her while...