State v. Shippee, 02-081.

• Decision Date: 05 November 2003
• Docket Number: No. 02-081.,02-081.
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Vernon T. SHIPPEE.

839 A.2d 566

STATE of Vermont v. Vernon T. SHIPPEE.

No. 02-081.

Supreme Court of Vermont.

November 5, 2003.

Present AMESTOY, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

ENTRY ORDER

¶ 1. Defendant Vernon T. Shippee appeals his conviction after a jury found him guilty of lewd and lascivious conduct in violation of 13 V.S.A. § 2601. He argues on appeal that: (1) he was subjected to arbitrary and discriminatory enforcement because he was charged under 13 V.S.A. § 2601, a felony, rather than under 13 V.S.A. § 2632, a misdemeanor; (2) the trial court erred by admitting, as signature evidence, a videotape and testimony regarding defendant's prior conduct at another store; (3) it was plain error for the court to admit a police officer's testimony because it impermissibly bolstered the credibility of the hearsay statements made by the child victim; and (4) the court erred in denying defendant's motion to require the State to produce the child victim as a witness. We hold that the trial court failed to exercise its discretion under V.R.E. 403 when it admitted the evidence regarding defendant's prior conduct and, therefore, reverse and remand.

¶ 2. The State charged defendant with lewd and lascivious conduct for exposing himself and masturbating in front of a young child at a department store. The charge was based on the following alleged facts. On May 31, 1998, T.P. (mother) was shopping at Wal-Mart with her five-year-old daughter, E.P., when a man, later identified as defendant, approached them. According to the testimony, defendant followed them closely throughout the store. Subsequently, on July 19, 1998, the family was watching a news story on television that showed defendant's picture in connection with a court case. E.P., who was playing in the room during the news story, approached mother and said to her unexpectedly that the man on television was a "bad man" who "had his private parts sticking out" and "was scratching himself" when they were at Wal-Mart. Mother promptly notified the police, and a police detective and SRS investigator interviewed E.P. at the police special investigations office. Defendant was then arrested and eventually charged under 13 V.S.A. § 2601.

¶ 3. Prior to trial, the State moved to introduce hearsay statements of E.P., pursuant to V.R.E. 804a. Specifically, the State sought to introduce statements made by E.P. to her mother and the detective during the police interview. In ruling that the child's statements were admissible hearsay under Rule 804a, the court noted the presence of "substantial indicia of trustworthiness sufficient to allow the jury to consider, weigh and dispose of the information."

¶ 4. In February 2000, the State filed a "Notice of Prior Bad Acts" in which it stated its intent to introduce testimony by a loss prevention specialist at Ames Department Store that, on May 3, 1998, he observed, and recorded on closed circuit video, defendant approach a young child in the store and "play" with himself. The court denied the motion, subject to further motion for introduction at trial, finding that the "unfair prejudicial effect [of the evidence] is not outweighed by its probative value."

¶ 5. One week before trial, the State informed defendant's counsel by letter that the State was uncertain as to whether it would call E.P. to testify and that, therefore, defendant's counsel would have to subpoena E.P. if he wished to ensure her presence at trial. Defendant requested that E.P. be required to testify on the morning of trial, and the court denied the motion as untimely. During the jury trial, held on October 18, 2000, the State again sought to introduce the videotape and testimony of the Ames employee. After reviewing the tape, the trial judge granted the request, and allowed the State to admit the tape and testimony. The jury returned a verdict of guilty.

¶ 6. On October 20, 2000, two days after trial, defendant filed a motion to dismiss based on his argument that the State should have charged him with a prohibited act under 13 V.S.A. § 2632, a misdemeanor, instead of lewd and lascivious conduct under 13 V.S.A. § 2601, a felony. The court denied the motion, and this appeal followed.

I.

¶ 7. First, defendant claims he was subjected to arbitrary and discriminatory enforcement because he was charged with a felony under 13 V.S.A. § 2601 instead of a misdemeanor under 13 V.S.A. § 2632, and that the court therefore erred by denying his motion to dismiss. This argument lacks merit. When there are overlapping criminal offenses with which a defendant could be charged based on the facts, it is within the prosecutor's discretion to choose among them. State v. Perry, 151 Vt. 637, 641, 563 A.2d 1007, 1010 (1989); United States v. Batchelder, 442 U.S. 114, 123-24, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) ("This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants.").

¶ 8. Defendant further argues that, under the void-for-vagueness doctrine, 13 V.S.A. § 2601 lacks "sufficiently precise standards to avoid arbitrary and discriminatory enforcement." See State v. Purvis, 146 Vt. 441, 442, 505 A.2d 1205, 1206-07 (1985). Because First Amendment interests are not implicated here, we must base our examination of the statute on its application to defendant and the facts presented, and not on the statute's possible application to others. State v. Dann, 167 Vt. 119, 128, 702 A.2d 105, 111 (1997). Section 2601 provides that "[a] person guilty of open and gross lewdness and lascivious behavior shall be imprisoned not more than five years or fined not more than $300.00, or both." 13 V.S.A. § 2601. Defendant was charged with violating 13 V.S.A. § 2601 based on facts that he exposed himself and masturbated in front of a young child at a department store. As we found in Purvis, 146 Vt. at 443,505 A.2d at 1207, "the statute is sufficiently certain to inform a person of reasonable intelligence that this type of conduct is proscribed." Thus, the court did not err by denying defendant's motion to dismiss.

II.

¶ 9. Second, defendant argues that the trial court erred by admitting, under Vermont Rule of Evidence 404(b), a videotape and testimony regarding defendant's prior conduct at another department store as signature evidence. Defendant also claims that the court failed to exercise its discretion under V.R.E. 403.¹

¶ 10. In order to claim error on appeal, a defendant is required to make a timely objection to the admission of evidence, and if it is not apparent from the context, he or she must state the specific ground for the objection. V.R.E. 103(a)(1). One of the primary purposes behind this rule requiring specific objections is to sufficiently alert the trial court to the theory behind the objection so that the judge can rule intelligently and quickly. State v. Bissonette, 145 Vt. 381, 392, 488 A.2d 1231, 1237 (1985); Bryant v. Consol. Rail Corp., 672 F.2d 217, 220 (1st Cir.1982). In this case, prior to trial in September 2000, the court denied the State's proffer of the prior act testimony and videotape under Rule 404(b) because its probative value did not outweigh its unfair prejudicial effect. One month later at trial, when the State again moved to admit that evidence, defendant objected to its admission on the grounds that it was "propensity" evidence.

¶ 11. Rules 403 and 404(b) "go hand in glove" because 404(b) "describes a particular form of evidence that might create the `unfair prejudice' anticipated under [Rule] 403." United States v. Currier, 836 F.2d 11, 17 (1st Cir.1987). Thus, even where the single issue on appeal was whether the trial court erred in improperly admitting a prior bad act pursuant to 404(b), we have proceeded to examine the admissibility under Rule 403: "[A]ssuming that the proffered evidence meets the requirements of Rule 404(b), the evidence must also pass the Rule 403 balancing test, in which the probative value of the evidence is compared to any unfair prejudicial effect." State v. Winter, 162 Vt. 388, 399, 648 A.2d 624, 631 (1994).

¶ 12. Given the necessary interaction between 404(b) and 403 in determining the admissibility of prior acts evidence, the context in which the objection was made, and the court's pretrial 404(b) ruling on Rule 403 grounds, the defendant's "propensity" objection was sufficiently specific to alert the trial court to defendant's theory behind the objection and to preserve the objection for our review. Cf. Bissonette, 145 Vt. at 392,488 A.2d at 1237 (finding that defendant's objection to prior bad acts evidence on grounds that it was "collateral" and not on 404(b) grounds was not sufficient to preserve objection for review under V.R.E. 404(b) because it did not draw the court's attention to defendant's concerns under Rules 403 and 404). Therefore, we first turn to the discretionary action of the trial court in making a decision under the 403 test because our decision on this issue is determinative.

¶ 13. The discretion of the trial court is broad when reaching a decision based on the balancing test under Rule 403. State v. Wheel, 155 Vt. 587, 604, 587 A.2d 933, 944 (1990). To prevail on his claim, defendant must prove the court either completely withheld its discretion or exercised it on grounds clearly untenable or unreasonable. State v. Dorn, 145 Vt. 606, 616, 496 A.2d 451, 457 (1985).

¶ 14. While we have not required the trial court to specify the precise weight it accords each factor in the balancing test, there must be some indication — especially in cases like this one where the potential for unfair prejudice is high — that the court actually engaged in the balancing test and exercised its discretion under V.R.E. 403. State v. Derouchie, 153 Vt. 29, 35, 568 A.2d 416, 419 (1989) (holding that record was sufficient to show exercise of discretion by...