State v. Robinson

Decision Date03 April 1992
Docket NumberNo. 90-549,90-549
Citation611 A.2d 852,158 Vt. 286
PartiesSTATE of Vermont v. Michael ROBINSON.
CourtVermont Supreme Court

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

E.M. Allen, Defender Gen. and William A. Nelson, Appellate Atty., Montpelier, for defendant-appellant.


DOOLEY, Justice.

After a trial by jury, the district court convicted defendant of lewd and lascivious conduct with a child. He appeals, arguing that a statement he made to the arresting officer, "I never thought this would happen again," was improperly admitted under the Vermont Rules of Evidence and was involuntarily given in violation of his constitutional rights. He further argues that testimony given by the police officer relating statements made to him by the complainant child was improperly allowed because the child made the statements after a motive to falsify had arisen. We affirm.

The charges against defendant centered on defendant's contact with the child, who was four years old at the time of the incident and seven years of age at trial, while he babysat for the child one night in his apartment. The State alleged that defendant fondled the child's penis and had the child touch his penis. Defendant testified at trial that the only touching that took place was when the child momentarily touched defendant's penis, out of a child's innocent curiosity, and that defendant told the child to stop as soon as he was aware of the contact, and sent him to another room.

Following an investigation that included an interview with the child, a Burlington police officer spoke with defendant. Defendant confirmed that he had babysat for the child, and the officer asked defendant to accompany him to the police station. There, the officer informed defendant of his rights and arrested him. Defendant spoke over the phone with an attorney, who advised him not to discuss the charge, and he declined to answer questions. During the officer's routine booking procedure, defendant answered questions regarding his address, employment, age and so forth; defendant asked the officer if he was going to be jailed and told the officer that he was "sick" and that he was an outpatient at a mental health clinic. The officer responded to the defendant's questions. After the booking inquiries resumed, defendant said, not in response to any question, "I didn't think anything like this would happen again."

That statement is the focus of this appeal. Although defendant objected, the trial court allowed the State to introduce this statement as an admission. The court also denied defendant's motion to suppress the statement on the ground that it had been given involuntarily.

We first address the admissibility of the statement to the arresting officer under the Vermont Rules of Evidence. Defendant first argues that the statement should have been excluded under V.R.E. 404(b), which states that evidence of prior bad acts is "not admissible to prove the character of a person in order to show that he acted in conformity therewith," but allows such evidence for other purposes.

It is important at the outset to understand the parties' respective positions. The State argues that the statement was an admission that defendant committed the offense for which he is charged. It is interested in the apparent reference to another charge only insofar as the reference bolsters its interpretation of the words. The defendant, on the other hand, seeks to exclude the whole statement even if it is an admission to the current charge. He argues that, if interpreted as the State seeks, it is also an admission to a prior crime, and that admission is barred under V.R.E. 404(b).

The rule on which defendant relies bars propensity evidence--that is, evidence that is presented in order to convince the jury that it is more likely that defendant did the act presently charged because it is similar to something he has done in the past. See State v. Hurley, 150 Vt. 165, 168, 552 A.2d 382, 383 (1988). The rule provides, however, that prior bad act evidence may be admissible for other purposes and sets forth an illustrative list of permitted uses. The list is not exclusive. See State v. Bruyette, 158 Vt. 21, ----, 604 A.2d 1270, 1272 (1992) (evidence is admissible for "some other legitimate issue in the case"). We have, for example, allowed admission of such evidence to show a defendant's sanity or to provide the basis for the opinion of an expert witness even though neither of these uses is among the list specifically authorized in Rule 404(b). State v. Percy, 149 Vt. 623, 641, 548 A.2d 408, 417 (1988).

The answer to defendant's contention is that the court admitted the evidence for a purpose not prohibited by V.R.E. 404(b). To the extent that the statement might have constituted an admission of a prior bad act, it was a by-product of an admission to the crime before the court. There was no claim that the prior bad act showed a character trait or that defendant acted in conformity with that trait in committing the current crime.

Defendant emphasizes that the State argued to the court and the jury that the statement shows that defendant committed a crime in the past. The State did so, however, only to advance its theory that the words conveyed an admission of the act presently charged. The words made sense as an admission to the current crime only if they were made in reference to past conduct.

Defendant also argues that the evidence of the past crime is admissible only if the trial court is able to find the existence of the past crime by a preponderance of the evidence, a standard he argues is not met here. We seriously doubt whether the State had the burden to prove the existence of the past crime at all when the real issue was whether defendant admitted committing the crime for which he was charged. In any event, the United States Supreme Court has held that prior bad act evidence that is otherwise admissible under Federal Rule 404(b) may be allowed if the jury could reasonably find by a preponderance of the evidence that defendant committed the prior bad act. Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 1501-02, 99 L.Ed.2d 771 (1988). We adopted that interpretation of V.R.E. 404(b) in State v. Wheel, 155 Vt. 587, 603, 587 A.2d 933, 943 (1990), and its standard is met here. The jury could reasonably conclude that defendant admitted committing the crime for which he was charged and, therefore, that he committed a similar crime in the past. The State has no burden to show the details of that prior crime.

In reaching the conclusion that the statement was not barred by Rule 404(b), we are guided by the decisions of other states that have reached such a conclusion under similar or identical evidentiary rules. See Callis v. People, 692 P.2d 1045, 1052 (Colo.1984); Ingram v. State, 253 Ga. 622, 638, 323 S.E.2d 801, 816 (1984); Brafford v. State, 516 N.E.2d 45, 47-48 (Ind.1987); State v. Morris, 429 So.2d 111, 121 (La.1983); Commonwealth v. Jackson, 388 Mass. 98, 105, 445 N.E.2d 1033, 1037 (1983); State v. Charles, 92 N.C.App. 430, 435-36, 374 S.E.2d 658, 661 (1988); State v. Tillman, 304 S.C. 512, 515, 405 S.E.2d 607, 612 (1991).

Defendant's second argument on this point is that the probative value of the statement is substantially outweighed by its prejudicial impact, and, therefore, is barred by V.R.E. 403. See State v. Catsam, 148 Vt. 366, 380, 534 A.2d 184, 193 (1987) (evidence offered as an exception to general past acts prohibition of Rule 404(b) must pass Rule 403 balancing test for admissibility, citing State v. Bevins, 146 Vt 129, 135, 498 A.2d 1035, 1039 (1985)). V.R.E. 403 provides, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." The rule's balancing test is applied by the trial court in its sound discretion, State v. Chenette, 151 Vt. 237, 245, 560 A.2d 365, 371 (1989), and we will reverse only for abuse of that discretion. State v. McElreavy, 157 Vt. 18, ----, 595 A.2d 1332, 1335 (1991).

There are a number of factors in support of defendant's position. The statement is ambiguous. While the State's interpretation is possible, it is also possible that the statement referred to the charge or the arrest and not to the commission of the crime. The probative value is weakened by the ambiguity.

If the State's interpretation is correct, defendant committed a past crime similar to that for which he was charged, but he was never charged for the prior crime. See State v. McCarthy, 156 Vt. 148, 155, 589 A.2d 869, 873 (1991) (evidence of uncharged crime presents "grave danger of prejudice"). As noted above, the State did not offer proof, other than defendant's statement, that the prior crime existed, and defendant denied that he ever committed such a crime. Defendant argues that all these factors make the admission of the statement highly prejudicial.

While defendant's arguments have some force, we conclude that the court had the discretion to admit the statement. First, the nature of the ambiguity in the statement affects the balancing in a way that supports admissibility. If the jury finds that the "this" which defendant did not think would happen again was the commission of a sexual assault, the probative value of the statement is very high. Correspondingly, the danger of unfair prejudice is lowered because the admission of the crime for which defendant is charged is far more significant than the admission of the past crime. See State v. Jackson, 351 N.W.2d 352, 356 (Minn.1984) (where statement included admission defendant strangled two women and his two young sons, reference to possible killing of his spouse was not inflammatory). On the other hand, if the "this" is not...

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