184 A.3d 1177
Vt.2018Background
- In May 2015 at Burlington marathon events, three females (two minors, ages 14 and 15, and one adult) reported repeated unwanted touches to their buttocks by a tall, long-haired, bearded man carrying a backpack. Photographs of the man were taken by bystanders and a state police detective.
- Victims reported the incidents to police days later. At a November 2015 pretrial hearing the three witnesses identified defendant John Discola in court; defendant was seated at defense table in prison garb and shackles and two witnesses had seen his photograph shortly before the hearing.
- The State charged Discola with 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). At trial the victims again identified Discola; the jury convicted on all counts.
- Discola moved for judgment of acquittal at the close of the State’s case (denied) and rested without presenting evidence. He later appealed raising sufficiency of evidence, suppression of pretrial identifications, and prosecutor misconduct in closing argument; he did not object to the closing argument at trial.
- The superior court denied suppression and denied the Rule 29 motion; on appeal the Vermont Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency — whether unwanted grabbing can be "lewd and lascivious" | State: context, repeated unwanted touching in public supports a finding of lewdness under community standards | Discola: mere clothed contact with buttocks is not criminal lewdness; insufficient evidence of sexual intent for §2602 | Court: left to jury; repeated, nonconsensual, sexualized touching of strangers in public may be lewd; circumstantial evidence supports specific intent for §2602 |
| Specific intent for child victims (§2602) | State: intent may be inferred from acts, staring, smirking, repeated touching, and sexualized nature of buttocks | Discola: no proof of lustful intent toward minors | Court: intent can be inferred from surrounding circumstances; evidence sufficient to prove lustful intent beyond reasonable doubt |
| Pretrial in‑court identifications — admissibility | State: identifications admissible because witnesses’ contemporaneous descriptions and photos matched and supported reliability | Discola: identifications were unduly suggestive (courtroom setting, prison garb, prior photo exposure) and should be suppressed | Court: identification circumstances were highly suggestive but indicia of reliability (prior unprompted descriptions, matching photos, distinct appearance) outweighed suggestiveness; admission proper; court eliminates witness certainty as a reliability factor going forward |
| Prosecutor closing comments — "send a message" and impugning defense | State: closing stayed within evidence and urged community protection | Discola: comments were inflammatory, prejudicial, violated due process; require new trial | Court: remarks were improper and condemned, but unobjected-to; review for plain error fails — isolated and not so egregious as to strike at the heart of constitutional rights |
Key Cases Cited
- State v. Noyes, 198 Vt. 360 (discusses renewal/preservation of Rule 29 motions)
- State v. Penn, 176 Vt. 565 (explains jury may define lewd and lascivious under community standards)
- State v. Squiers, 179 Vt. 388 (lewdness not limited to contact with sexual organs; intent and nature of contact control)
- State v. Grenier, 158 Vt. 153 (distinguishes specific intent in §2602 from general intent in §2601)
- State v. Cole, 150 Vt. 453 (intent inferred from circumstantial evidence)
- Manson v. Brathwaite, 432 U.S. 98 (two-part due process test for suggestive identifications; discussed and applied)