State v. Kerri Nicholas, 2024 VT 62

Defendant Kerri Nicholas was convicted of cruelty to a child after a jury trial, specifically for causing injuries to a one-year-old child, O.S., who was living with him and his girlfriend (O.S.'s mother) in 2019.
Medical evaluations revealed O.S. suffered multiple unexplained injuries, including rib and arm fractures and a bruised ear, determined by experts to be consistent with abusive force.
O.S.’s mother recounted both prior concerning conduct by Nicholas and innocuous explanations provided by Nicholas for O.S.'s injuries, but only later considered them suspicious.
During pretrial proceedings, the State sought to introduce two prior bad acts: a 2009 allegation of child abuse (uncharged) and a 2012 conviction for child cruelty involving a different child. Only the 2012 conviction was admitted.
The trial court admitted the prior conviction under V.R.E. 404(b) for the limited purpose of showing intent or absence of mistake, gave limiting instructions to the jury, and Nicholas was ultimately found guilty.
On appeal, Nicholas argued that introducing the prior conviction constituted plain error, especially because it involved a different victim and alleged undue prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of prior conviction for intent (404(b))	Prior conviction is relevant to show willful intent, not propensity; intent is required to prove the charge	Prior conviction is irrelevant and unfairly prejudicial, since it concerns a different victim and no claim of accident at trial	Properly admitted for intent; not plain error
Risk of unfair prejudice under V.R.E. 403	Limiting instructions and minimal introduction reduced prejudice; other evidence supported conviction	Prejudice outweighed any probative value; prior misconduct tainted the jury	No substantial unfair prejudice; did not affect trial fairness
Applicability to different victim	Prior acts can show intent regardless of victim (not limited to same victim cases)	Only prior acts against the same victim may be relevant, citing domestic violence context	Rule 404(b) allows use for intent element even if victim differs
Plain error standard	No obvious or fundamental error; conviction supported by strong evidence; appropriate limiting instructions	Error is obvious and affects due process, undermining the verdict	No plain error; conviction affirmed

State v. Lipka, 174 Vt. 377 (sets State's burden for 404(b) admissibility)
State v. Hendricks, 173 Vt. 132 (distinguishes context evidence in same-victim cases)
State v. Cardinal, 155 Vt. 411 (404(b) evidence can concern different victim)
State v. Amsden, 194 Vt. 128 (interprets statutory willfulness requirement)
State v. Hinchliffe, 186 Vt. 487 (trial court discretion in prejudice balancing for bad acts)
State v. Longley, 182 Vt. 452 (effect of jury limiting instructions for bad acts evidence)
State v. Herrick, 190 Vt. 292 (plain error review standard)