State v. Patten, 197 A.3d 873

Complainant and her boyfriend moved in with defendant in Vermont in 2013; living spaces were connected by a shared laundry area.
In April 2014 defendant entered complainant’s apartment, told her he was a "sex offender," and then engaged in unwanted sexual contact; complainant reported this as the first sexual encounter.
Complainant reported the assaults to family and police in August 2014; defendant was charged with aggravated sexual assault and convicted by a jury in August 2016.
Pretrial, the State gave 404(b) notice to admit the sex‑offender comment as evidence of intent and to rebut a consent defense; the trial court admitted it under Rules 404(b) and 403.
Defendant sought to admit a November 2013 masturbation incident under Vermont’s rape‑shield exception (13 V.S.A. § 3255) to show an ongoing consensual course of conduct; the trial court excluded it as an isolated, highly private incident with minimal probative value.
Defendant appealed, arguing erroneous admission of the sex‑offender testimony and erroneous exclusion of the November 2013 evidence; the Vermont Supreme Court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of testimony that defendant said he was a "sex offender" immediately before the April 2014 contact	Testimony was relevant to defendant's intent and complainant's state of mind/fear; probative value not substantially outweighed by unfair prejudice	Statement implied a prior conviction and unfairly prejudiced jury; Rule 609 analysis required	Admission upheld: statement is not evidence of conviction, admissible under V.R.E. 404(b) for intent/state of mind and properly balanced under V.R.E. 403
Exclusion of November 2013 masturbation incident (rape‑shield exception)	N/A (State opposed)	Evidence showed prior sexual conduct with defendant and was material to consent; probative value outweighs private character under § 3255(a)(3)(A)	Exclusion upheld: trial court reasonably found the incident was isolated, five months earlier, with minimal probative value that did not outweigh its private character

State v. Kelley, 148 A.3d 191 (Vt. 2016) (standard for reviewing admissibility of evidence)
State v. Shippee, 839 A.2d 566 (Vt. 2003) (trial court's broad discretion under V.R.E. 403)
State v. Cardinal, 584 A.2d 1152 (Vt. 1990) (limits and permitted uses of 404(b) evidence)
State v. Gonyaw, 507 A.2d 944 (Vt. 1986) (contemporaneous prior sexual conduct probative of consent)
State v. Lavalette, 578 A.2d 108 (Vt. 1990) (distant prior sexual conduct not reasonably contemporaneous)
State v. Longley, 939 A.2d 1028 (Vt. 2007) (addressing unfair prejudice under 403 for similar prior incidents)
State v. Connor, 19 A.3d 146 (Vt. 2011) (evidence of court's balancing under Rule 403)