¶ 1. Defendant Ricky Laprade appeals his convictions for first-degree aggravated domestic assault, 13 V.S.A. § 1043(a)(1), and
¶ 2. On June 14, 2004, defendant’s former girlfriend, C.B., called the police and claimed that defendant had just entered her apartment without permission and strangled her with a cord while she lay sleeping. C.B. managed to escape and called the police. When the police responded, they did not find defendant. He was ultimately apprehended four days later, when the police discovered him in some bushes about оne hundred yards from C.B.’s apartment.
¶ 3. Before trial, the State filed a notice of its intent to introduce evidence of several prior bad acts involving defendant and C.B. See V.R.Cr.P. 26(c) (“When the state in a criminal action intends to offer evidence of other criminal offenses under Rule 404(b) of the Vermont Rules of Evidence, . . . [it] shall furnish to the other parties ... a written statement of the acts or offenses it intends to offer . . . .”). The State took the position that “these prior inсidents of abuse are admissible at trial pursuant to the holding in
State v. Sanders,
¶ 4. First, the State proposed to introduce evidencе of an incident on June 11, 2004, when a Burlington police officer responded to a call from C.B. According to the report, the officer responded to a call from a neighbor who reported that defendant was holding C.B. against her will in a bedroom. Upon arriving at the scene, the police officer found C.B. with “red marks near her eyes as if she had been struck in the face” and “scratches and welts on her left arm.” C.B. told the officer that defendant had come uninvited into her home and had hit her in the face, but that she would not say so in court. When C.B. asked the officer what she could do to keep defendant away from her, the officer suggested a temporary restraining order (TRO) and drove C.B. to the police station so she could apply for one. Upon arriving at the station, C.B. had a change of heart and decided to apply for a no-trespass order (NTO) instead of the TRO, because she could get аn NTO without writing out the allegations of abuse. The officer then drove C.B. back to her house; as C.B. was walking up the front steps, she abruptly reversed course and returned to the cruiser because defendant was on the porch. The officer then issued the NTO to defendant, who claimed he was there only to retrieve a backpack. Shortly thereafter, C.B.’s then-current boyfriend, P.W., arrived at the house. Defendant “began looking at [P.W.] and told him that they would ‘dance’ later.” The officer advised defendant that this behavior was inappropriate, that defendant was not to call C.B., come to her house, or go to her workplace, and that, if he did, a stalking charge might be pursued. No charges resulted from the June 11 incident.
¶ 5. The second act the State sought to introduce occurred on April 29, 2003 and
¶ 6. The State also moved to introduce evidence of defendant’s “flight/furlough status.” That motion averred that defendant was on furlough аnd was required to report to the Department of Corrections (DOC) on June 11, 2004. Defendant did not do so, and was placed on “[ejscape” status. The State argued that defendant’s furlough status, and the fact that he was on escape status on June 14, should be submitted to the jury as evidence of flight, which “tends to show consciousness of guilt.”
¶ 7. After a pretrial hearing on the prior bad acts, the court ruled that the evidence of the April 29 incident was admissible under Sanders “to show the context of the relationship between these two people.”
¶ 8. Defendant’s only defense at trial was that he could not have perpetrated the garroting because he was visiting his children and ex-wife in Barre at the time of the assault. Defendant called two alibi witnesses: his ex-wife and her partner. Both testified that defendant was in Barre on the weekend of June 14, 2004. Defendant’s ex-wife also testified, without objection, that he physically abused her during their marriage. She noted that, although she and defendant had divorced, she did not limit his access to their children, except that she would not take them to visit him in jail.
¶ 9. In further support of defendant’s claim that he could not have been the assailant, he contended at closing argument that, given his history with C.B., he would have known better than to leave behind the cord. The trial court gave several limiting instructions to the jury, including the following instruction regarding the prior bad acts:
You were presеnted with evidence which you may conclude showed that the defendant assaulted [C.B.] on occasions other than the one charged here. This evidence . . . has been offered only for the purpose of showing you the nature of the relationship between [defendant and C.B.].
Let me tell you what you cannot use the evidence of prior assaults for. One, you cannot use the evidence to conclude that the defendant is a bad person or a person of bad character, and two, you cannot use the evidence to conclude that because the defendant may have assaulted [C.B.] in the past . . . that he [therefore] assaulted her on this occasion.
I. Prior bad acts
¶ 10. Defendant contends that the trial court abused its discretion in “allowing the prosecution to introduce evidеnce of prior bad acts and a prior conviction of [defendant] of domestic assault.” It is not altogether clear which specific acts defendant now means to contest. In his “Statement of the Facts and Case,” defendant mentions three prior bad acts: (1) the incident on April 29, 2003, which resulted in a domestic-assault conviction on March 1, 2004; (2) defendant’s furlough status and violation; and (3) the prior confrontation between defendant and C.B. on June 11, 2004. He also mentions C.B.’s testimony about “unspecified times” when defendant had hit her prior to the charged conduct. The remainder of defendant’s brief, however, focuses exclusively on the April 29 incident and offers no specific argument regarding either the June 11 incident, the “unspecified” incidents, or the furlough evidence. Accordingly, any claims of error related to the June 11 incident, the “unspecified” incidents, or defendant’s furlough status are waived. V.R.A.P. 28(a)(4);
Johnson v. Johnson,
¶ 11. The remaining act that wаs admitted under Rule 404(b) is the April 29 incident. Defendant now objects to the admission of both “the facts surrounding the conviction” and the conviction itself. Defendant stipulated at trial to the admission of the conviction itself, however, as well as the information. 2 Thus any claim of error as to the admission of the conviction itself was not preserved for appeal. Id. Accordingly, we consider only the evidence of the facts underlying the conviction. That evidencе consisted of testimony from one of the responding officers, and from C.B.
¶ 12. First, the jury heard testimony from Officer Maxfield, who responded to the 911 call on April 29, 2003. The officer testified that, when she located C.B. at the motel on April 29, C.B. was “emanating fear,” had a “red mark underneath her neck,” and that C.B.’s cheeks were “very, very flushed ... to the point that they looked bruised,” and that she had “a bruise-like area on her forehead, a little dried blood.” Officer Maxfield testified that dеfendant was at the scene, but offered no testimony about the details of the assault. Defendant did not object to these portions of the officer’s testimony. C.B. also testified, albeit minimally, about the facts of the April 29 incident. When asked what happened that day, she testified that defendant had locked her out of their motel room after an argument, and when she “[fjinally got in ... I don’t know, he must have — he hit me and then I fell down.” Defendant did not object to this testimony.
¶ 13. Evidence of “other crimes, wrongs, or acts” is not admissible, under the Vermont Rules of Evidence, to prove character in order to show that a person acted in conformity therewith. V.R.E. 404(b). Such evidence is, however, admissible for “other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Id.
The list of other purposes in Rule 404(b) is not exhaustive.
State v. Longley,
a. V.R.E. 404(b)
¶ 15. Defendant contends that the trial court erred in determining that the testimony about the April 29 assault was relevant under
Sanders,
¶ 16. Since
Sanders,
we have revisited the “context” theory in two other pertinent cases. The first,
State v. Hendricks,
involved a domestic-assault charge based on a single incident of violence. The
Hendricks
defendant had a prior conviction for domestic assault involving the same victim. The State sought to introduce evidence of the prior conviction, its surrounding facts, and an uncharged incidеnt in which the defendant had allegedly “assaulted the victim in front of their daughters by beating her head into the ground.”
This ease presents exactly the circumstances to which the reasoning of Sanders applies. The jury was presented with a single act of domestic violence. Defendant asserted that his actions during the incident were in self-defense, and that injuries to the victim occurred either in defending himself or as a result of the victim’s previous accidental fall.
Id.
at 139,
¶ 17. As noted above, the two concurring Justices in
Hendricks
took different views of what this Court actually held in
Sanders.
Justice Dooley characterized
Sanders
as a narrow opinion, and noted that it was premised in large part on the need for the jury to be presented with adequate evidence to make a fully informed credibility determination when “the victim is not telling all she knows.”
Id.
at 145,
¶ 18. Justice Skoglund, writing separately, also concurred in the result, noting that the prior bad acts evidence was properly admitted in
Hendricks
to rebut the defendant’s self-defense claim. She also agreed that “[i]n certain circumstances, it would be unfair to allow the jury to evaluate the victim’s credibility — for example, when the victim has acted in a manner seemingly at odds with the claim of abuse — without full knowledge of the dynamics of the relationship between the accuser and the accused.”
Id.
at 147,
¶ 19. We recently relied on
Sanders
once again, concluding that evidence of prior assaultive conduct against the same victim was relevant in a trial for first-degree domestic assault.
Longley,
¶20. We conclude that the prior bad acts evidence admitted here was relevant to shоw context under the facts of this case. C.B. testified at trial that, although defendant had hit her “[a] lot” during their relationship, she had never reported the conduct to the police. She testified specifically about three separate incidents in hotels where defendant had hit her, and defendant did not object to the testimony. C.B. then testified — also without objection — that, despite the ongoing violence, she paid both for the hotel stays and for her own aрartment. She further testified that she bailed defendant out of jail after the April 29 arrest because she “felt bad” for him and “felt sometimes it was [her] fault too” because “[m]aybe [she] aggravated too much.” C.B. then testified that, after the June 11 incident, she “really didn’t want [defendant] to go to jail” because “he was already in trouble.”
¶21. Moreover, in the course of questioning about the charged incident, C.B. made clear that she had never before notified the poliсe of defendant’s violence against her, although “[everybody else did.” C.B. also stated that she only called the police after the strangling because she thought that “this time [she] was going to die.” C.B.’s testimony was that defendant — still at large for several days — engaged in stalking-like behavior after the charged incident. C.B. testified that, between the charged incident and defendant’s arrest four days later, she saw “him outside or he would yell or he’d say let me in, let me in.” C.B., however, did not call the police, but rather told her landlord to do so if defendant came around the apartment again. Defendant did not object to this testimony.
¶22. C.B.’s testimony, as noted, was generally unequivocal about the details of the charged incident. This is not a case of a victim directly recanting her testimony about the charged conduct. What is clear from the record, however, is that the jury might well have found C.B.’s behavior — particularly her decision not to call the police herself when she repeatedly saw defendant near her apartment after the
b. V.R.E. 403
¶23. Having concluded that the evidence of the prior bad acts was relevant, we turn to the question of whether it was admissible. Because defendant failed to object at trial to the court’s failure to balance explicitly the probative value of the evidence against its potential for unfair prejudice, we review the decision on admissibility for plain error only. See
State v. Muhammad,
¶ 24. The trial court did not err in admitting the testimony about the details of the April 29 assault. The testimony, as noted, wаs brief and was no more inflammatory than the information itself, to which defendant stipulated. The information stated that defendant “was a person who recklessly caused bodily injury to [C.B.], by KICKING HER AND PUNCHING HER IN THE FACE, in violation of 13 V.S.A. § 1042.” By comparison, the testimony about the April 29 assault was innocuous: C.B. testified that “I don’t know, he must have — he hit me and then I fell down.” Officer Maxfield testified that C.B. was “emanating fear,” had a “red mark underneath her neck,” that C.B.’s cheeks were “very, very flushed ... to the point that they lookеd bruised,” and that she had “a bruise-like area on her forehead, a little dried blood.” The officer did not testify at all about what caused C.B.’s injuries. The prejudice resulting from this testimony was minimal at worst. Accord
Longley,
¶ 25. As noted above, the testimony was highly probative of the context of the relationship between defendant and C.B., and did not raise the speсter of unfair prejudice that could have resulted from testimony regarding other victims of abuse. See
State v. Anderson,
II. Battered woman’s syndrome
¶ 26. Defendant also argues that the trial court erred in admitting expert testimony regarding BWS, because the testimony was not relevant or, even if relevant, was unfairly prеjudicial. In admitting the testimony, the trial court ruled that the expert could testify only about the dynamics of abusive relationships generally, and about how victims of abuse typically respond; the court forbade testimony concerning abusers’ reactions when victims attempt to leave the relationship, reasoning that such testimony
“may be too prejudicial” and would “go[] over the line.”
¶27. The admissibility of expert testimony is specifically governed by Rule 702 оf the Vermont Rules of Evidence, and is also subject to the requirements of Rule 403. The question of admissibility is vested to the discretion of the trial court, and we will reverse only for an abuse of that discretion resulting in prejudice.
State v. Verrinder,
¶28. We considered the rationales underlying expert BWS testimony at some length in State v. Swift:
As the cases recognize, a victim truly suffering from BWS will, for various complex reasons, act in ways that may seem counterintuitive to the average juror. It is up to the prosecution ... to recognize the potential for juror confusion and offer appropriate expert testimony on BWS that will help the jury understand an alleged victim’s actions. See State v. Grecinger,569 N.W.2d 189 , 196 (Minn. 1997) (admitting expert testimony on BWS offered in the state’s case-in-chief reasoning that “it could help the jury understand behavior that might otherwise undermine the complainant’s credibility”).
2004 VT 8A, ¶ 21,
¶ 29. The first step in the Rule 403 balancing is to determine the probative value of the disputed testimony. The State argues that, although C.B. did not recant about the strangulation incident, other aspects of her testimony at trial might have been incomprehensible to the jury without the aid of the BWS testimony. Specifically, the State notes that C.B. testified that she remained in the relationship for years despite several prior instances of abuse, that she had never reported the abuse before the strangling incident, and that she had posted defend ant’s bail after the April 29 incident. We further note that C.B. testified that defendant returned to her apartment after the charged incident but that she did not call the police, instead merely telling her landlord, “if you see him, have him arrested.” As was noted above in connection with the prior-bad-acts testimony, this is the sort of superficially inexplicable or puzzling behavior that militates in favor of admitting context evidence. In the circumstances presented here, the testimony was probative of C.B.’s crеdibility, which jurors might otherwise have thought was undermined by her decision to remain in the relationship for as long as she did, and by her failure to call the police herself after the charged incident.
¶ 30. The State also contends that the BWS testimony was probative, in part, because C.B. “repeatedly professed to not remember and minimized her injuries and [defendant’s] abuse” at a pretrial motion hearing. In light of our conclusion that the expert testimony was probativе to explain the anomalies in C.B.’s testimony at trial, we do not rely on her purported testimonial inconsistencies at the pretrial hearing.
Affirmed.
Notes
The State’s notice of intent to introduce evidence of prior bad acts also announced the State’s intent to introduce evidence that C.B. had told two of her friends repeatedly of abuse by defendant. That evidence is not at issue in this appeal.
The information states that defendant “was a person who rеcklessly caused bodily injury to a household member, [C.B.], by KICKING HER AND PUNCHING HER IN THE FACE, in violation of IS V.S.A. § 1042.”
Compare
State v. Hendricks,