*1 yet on the fact that father’s rights based A.D.T.’s had be determined as previously. discussed turn appeal. now to father’s Father claims the court erred no clear convincing
because evidence that he established was unfit his parental period resume within a duties reasonable time. We disagree. firmly the record establishes that father had has custodial, A.D.T., no personal, or financial relationship with has being parent demonstrated interest in to the child. Father’s claim assumed his ironic here is because he parental never duties AD.T. place.
the first We reject father’s assertion that in cases like this where child, has never parent met his refused to in the participate planning case child, for the process and failed to slightest demonstrate the interest circumstances, the child’swell being or court juvenile must have some parent’s evidence about the parenting abilities before severing legal parent-child parent A relationship. completely who has refused to have with, for, any relationship child, or to take responsibility has father A.D.T., respect per done with se unable to resume his parental duties, and termination is if the court appropriate determines the child’s require case, best interests it. The court so concluded and there error. was no
Affirmed. Lipka
State of Vermont Bernard R. [817 27] No. 99-466 Amestoy, J., Dooley, Morse, Skoglund, Present: C Johnson JJ.
OpinionFiled November *2 Tartter, Sorrell, and David General, Assistant H. William Attorney General, Plaintiff-Appellee. for Attorney Montpelier, Saxman, and Anna General, Appellate Appel,
Robert Defender Defendant-Appellant. Attorney, Montpelier, J. judgment from a
Dooley, Lipka appeals Defendant Bernard of a verdict, assault conviction, of two counts sexual on a based 3252(a)(3), of lewd and § minor and one count in violation of V.S.A. § a child in of 13
lascivious conduct with violation V.S.A. 2602. Defendant (1) by: granting contends the trial court committed reversible error special seating arrangement for a child witness violation of defendant’s (2) confrontation; right to admitting Sixth Amendment evidence of prior (3) misconduct; refusing videotape to admit defendant’s agree error police interview. We with defendant’s first claim of and find agree that the error not harmless. We also that the evidence of on the grounds sexual misconduct was admissible asserted we Accordingly, State. reverse and remand. sequence investigation of events trial follows:
Defendant early and J.C. lovers in the fall of lived in an became 1997.J.C.
apartment Burlington K.C., daughters, her M.C. and who twin seven years apartment old the time. When an below J.C.’s became fall, later in vacant defendant rented it. The girls were' sometimes permitted visit defendant in his apartment, defendant would occasionally for them. babysit
On night Halloween J.C. refused to go allow M.C. to trick-or- treating had gone because she to a friend’s house after school without permission. Defendant offered to watch M.C. her while J.C. took other daughter trick-or-treating. J.C. day, testified the next while in car, she “heard the girls talking... about a shower.” When M.C. questioned, told mother that she had taken a shower with *3 — defendant. M.C. there said had been no inappropriate touching she washed and he defendant’s back washed hers. J.C. asked defendant about J.C., evening. incident that According to defendant claimed that he and M.C. may passed have each while he getting other was into the out, versa, shower and M.C. getting they was or vice but that had not actually together. showered conversation,
Following permit this J.C. did not to defendant be alone her stopped with children. She seeing romantically several days after New following Year’s Eve 1998. The July, J.C. heard one of her daughters “sucking make a comment about on private parts.” Describing “stunned,” herself as she recalled, talked with M.C. alone. As J.C. “I let trouble____And her know that she wasn’t she told me reluctantly that they were talking about sucking private That parts. [defendant’s] something was that had happened.” later,
A days J.C., few according M.C. further that revealed sexual contact had occurred between her and defendant aon number of occasions, and that she and “had taken their pictures private M.C. mother parts.” told her events these had occurred “when she supposed at the Boys & Club.” the police Girls J.C. called result, As a M.C. misconduct. of sexual allegations report of Social and Rehabilitation Department at an office interviewed time she at which (SRS) policeman, by an SRS worker Services activity with defendant.1 her described moved the time defendant that between in the interview
M.C. stated penis five sucked on defendant’s July of she apartment into his times and she vagina many in her times, fingers his placed he or six times, many as possibly than ten her hands more his with penis rubbed and defendant incident in which she an times. M.C. described seventy outside the First, penis defendant’s played she with together: showered waiting in it while defendant was Then, entered the shower she shower. other, penis. with his M.C. again played and she They each soaped
for her. took nude and defendant occasion on which she recalled one also room. She stated laundry in defendant’s of each other photographs stated not come out. M.C. also took of defendant did she photograph parts while private touched each other’s and defendant had that she them, covering with a blanket apartment on a couch her lying in another room. her mother and sister were while detectives, including the police three questioned
Defendant was later hour in talked for one They approximately interviewed officer who M.C. the conversation without The detectives recorded
the detectives’ vehicle. M.C. testified The officer who interviewed knowledge. M.C., admitted that it was oral sex with having defendant denied his while she was accidentally hand had touched that M.C.’s possible Defendant also told the getting and he was out. into his shower getting buy candy he had to the store with M.C. gone detectives that Defendant another incident took the shower.” described “before we his they allegedly pulled when down playing girls he which was Defendant denied that grabbed penis.2 reached pants up and M.C. other. A warrant taken of each search photographs
he and M.C. had discovery under-exposed of an day resulted executed that same such as wearing camouflaged pants, a man photograph depicting Polaroid defendant, his erect displaying penis.3 habitually those worn misconduct, of sexual all defendant with three counts charged The State September between involving occurring and all conduct involving M.C. charged defendant with child 1998. The first two counts
1997 and June *4 1 to the at trial. interview was and later shown The videotaped ignored Although accidental the State contact, it, testified to this incident of charge offering a bad act. making it nor it as neither based prior upon taken photograph was of but testified that it was him, defendant admitted that the At trial, J.C.,notM.C. by life in abuse, prison, the maximum punishment a crime for which
sexual (2) M.C., his and (1) vagina bringing in the inserting fingers him with charged of M.C. The third count in contact with the mouth penis ofM.C. and having a contact between hand by conduct with child lewd felony, the Although this also involved a charge of defendant. far that of years five less than only prison, was punishment maximum charges. two the first conduct uncharged sexual moved to introduce evidence
The State granted time The trial court over the frame. expanded with M.C. motion, was “admissible prior bad act evidence finding
State’s by her mother’s context’ for of M.C. show the ‘situational abuse boyfriend.” had similar also to admit evidence that defendant
The State moved victim, R.L., and a third six-year-old daughter, contact with his The court A.G., seven-year-old daughter girlfriend.4 of another order, the evidence ofdefend finding the motion in a written that granted case, the State’s of the “clearly theory bad acts relevant to prior ant’s was motive, mistake, intent and but also to show absence The to commit the offenses.” court noted opportunity demonstrate might there “suggested by police, when interviewed a and [him] contact between M.C. have been accidental sexual Hence, incident.” the court found that the bad act evidence shower “clearly in the case” and bears “directly disputed related to a issue Additionally, claims or the court found Defendant’s of accident mistake.” young girls of sexual in the same repetitive “[t]he series abuse and settings by a common scheme or Defendant plan similar shows alleged.” as to his to commit the acts highly therefore is intent probative The of six the officer who persons: evidence consisted (defendant’s defendant, M.C., J.C., R.L., ex- R.L.’s mother interviewed wife) a deposition, father. M.C. video testified police of her to the officer and the SRS worker was videotape statement camera, remaining also admitted. The exhibits consisted of Polaroid box, above, camouflaged and the photo pants, film Polaroid described description the pants search warrant under which were obtained. M.C.’s charge in the consistent alleged graphic largely of the incidents her earlier statement. He alleged Defendant testified at trial. denied all of sexual acts lack admit He did not accident or of intent as defense. He did M.C. claim vagina touching acts with of his while watched cartoons, consisted A.G. mother was in the house. did not seek admit this while A.G.’s elsewhere The State at trial. *5 Halloween, description left the but his of the
the contact as he shower to the incident remotely by shower incident was not similar described in closing M.C. Neither in his nor did defendant’s counsel opening any that committed of the acts but did not have argue in the criminal intent. his examination or cross-examination of Nothing such a claim. supported witnesses objection, She
Over R.L. testified at trial. described an incident that occurred in her home paternal grandparents’ eighteen about months the charged vagina before offenses in which defendant touched her while watching with R.L.’s older The court television brother. later believed, if jury testimony, instructed R.L.’s was to considered “for a limited purpose only... capable taking that defendant is chance of a child in having presence lewd contact with a another person... determining whether [or] contact between the Defend- ant’s and hand was accidental or intentional on [M.C.’s] Defendant’s mother, part.” testimony, connection with R.L.’s her wife, former testified that she learned about the incident when R.L. center, day it at
disclosed care that the incident brought her contact that, incident, with the police, since defendant has had no Also, visitation daughter. with his defendant’s father testified that he was room the alleged when it touching occurred and did not happen. see jury The a guilty returned verdict on all counts. Defendant’s motion for new trial was denied. This appeal followed.
I. A. Defendant first contends his Sixth right Amendment by confrontation was violated a special seating arrangement at trial in which R.L. away was seated from facing during her testimony.
We discuss this briefly it, issue because the State essentially has conceded briefing and arguing instead that the error was harmless. granted
The trial pretrial court the State’s special motion for the seating arrangement, old, that R.L. was noting years nine and that she had not seen disclosing defendant since that he had inappropriately touched two years earlier. As defense described counsel noting his objection, placed R.L. sat at a in front table with her back to defendant. The prosecutor sat at the facing table R.L.
questioning. Defense counsel offered the same opportunity to sit R.L., facing but chose not to cross-examine her.
Prior to testimony, R.L.’s the court instructed the jury special that the seating arrangement had made been “because it’s a child and feel the we configuration this kind of sitting [in] more at ease if she’s child would be on the witness stand.” sitting than rather held that has expressly Court Supreme States
The United meeting the defendant face-to-face “guarantees Confrontation Clause Iowa, Coy v. fact,” 487 U.S. the trier before appearing witnesses “not absolute” right 1012, 1016(1988), recognized but has also “ public policy way to considerations occasionally give “must ” (1990) 836, 849 Craig, Maryland 497 U.S. the case.’ the necessities (1895)). States, 156 U.S. Accordingly, Mattox v. United (quoting receiving statutory procedure Craig upheld Maryland’s the Court in closed molestation case in a sexual a child witness M.C.’s that used to admit television, similar to procedure circuit Supreme Court noted 807. in this case under V.R.E. *6 otherwise procedure the right: of the confrontation the other elements all of
preserved] testify testify and must competent must be The child witness for oath; opportunity retains full the defendant under cross-examination; judge, jury, and the contemporaneous monitor) (albeit the video by are to view able (and as he or she testifies. of the witness body) demeanor of “case- necessity Court stressed the Id. holding, at 851. In so the necessary protect findings special procedure that the specific” Id. at 855. Without purporting child witness. particular welfare distress such showing required the minimum of emotional define the trial by Court a determination required nevertheless procedure, by presence that the child witness would be traumatized court Id. at defendant. 856. as defined right with defendant that his to confrontation agree
We Craig by seating arrangement was violated by Supreme Court testified, she as well as seeing defendant from R.L. while prevented findings concerning make by adequate the trial court’s failure to Craig the use of Although approved of such an necessity arrangement. seeing from the defend circuit television to a child witness prevent
closed ant, opportunity retain the required it a minimum —that defendant —at (and body) of the witness as he or she testifies.” “to view... the demeanor 2000) (Ill. Lofton, v. 851; 740 N.E.2d People Id. at see also (defendant’s by erected rights violated barricade confrontation clause view). The seating child witness from trial court blocked deprived in this indisputably the trial court case arrangement devised during' the witness’s demeanor to observe opportunity defendant of Furthermore, requirement.5 to this testimony, contrary although the arrangement necessary that the because argued seating R.L. allegations years had not seen since her of misconduct several — — earlier, specific there was no or finding seating or arrangement necessary prevent emotional distress trauma to the child The court ruled that simply “permit witness. it would the State to proceed along plainly inadequate those lines.” This was under Craig, requires specific particularized necessity. which findings U.S.
at 855.
B. however, argues, The State that the error was harmless view of the strength of the State’s and the limited weight testimony. case of R.L.’s conviction, error, can a criminal uphold despite confrontation clause if beyond we find that the error was harmless a reasonable doubt. See Coy, 1021; 37, 42, 605 501, 503(1991). 487 U.S. State Lynds, at 158Vt.
The way applied the standard is to is set in Coy, leading be out decision of the United Supreme States Court:
An assessment of harmlessness cannot include consideration of whether the witness’ would unchanged, have been unaltered, the jury’s confrontation; assessment had there been inquiry obviously such an would involve pure speculation, and harmlessness must therefore determined on the basis of the remaining evidence.
Coy, 487 U.S. 1021-22.As in Lynds, we said determine “[t]o whether harmless, error is we must a trial posit without evidence by [the witness testified in who violation rights].” defendant’s confrontation *7 42, 605 Lynds, 158 at 503. Vt. A.2d at
Thus, the question beyond before us is whether we can say a reasonable doubt that the would have convicted if defendant R.L. had never testified. In considering question, this we must the ignore also testimony of defendant’s father and the of ex-wifethat R.L.’s brought her in accusations contact with the police and resulted in defend- ant seeing never R.L. the again before trial. We conclude we cannot seating arrangement This Court in which the the defendant and child witness had a upheld Dunbar, somewhat view obstructed of each other, 399, 404-06, 566 Vt. A.2d 970, (1989), Dunbar, Craig. 973-74 but that decision Court’s in decision In preceded Supreme findings the court made based on evidence of trauma to the child. Id. of case-specific necessity A.2d at 974. 405, 566 had no effect that this evidence doubt beyond a reasonable say verdict. jury’s must harm we equation factors important
The most two offending case without prosecution’s of the strength are the employ offending approaching evidence. strength it not the role of understand that is factors, important it is of these first See Kotteakos v. guilty. is whether defendant Court to determine
this (1946). analysis in our States, 328 U.S. danger The main United an error is whether determining the evidence strength of of the United Harry Edwards Judge Chief harmless was described of Columbia Circuit: for the District Appeals States Court appellate error arises when we as The with harmless problem our own inquiry the harmlessness conflate judges dangerously is guilt. approach This assessment of a defendant’s to view an error seductive, natural inclination is for our appears well a defendant’s conviction harmless whenever However, the seductiveness evidence. by the record justified attractions, defect, for, its chief drawn is its approach that it rule to an extent the harmless-error such applied have we invoke and I are inclined to my colleagues my is impression guilt a defendant’s automatically proof it almost where strong. seems Human, Harmless: When Should Always Err But Not To Edwards,
H. Tolerated?, (1995). 1167,1170 The issue Be L. Rev.
Legal Error 70 N.Y.U. offending done without jury might have us is what before evidence, if the factfinder. not what we would do we were base, M.C. and defendant swearing a classic contest. Both
At this was each of these Defendant denied made detailed accusations. testified. M.C. both, discrepancies accusations. There were
detailed There was no discrepancies. out these pointed and cross-examination many testified to Although accusations. she corroboration for M.C.’s more, month eight period 100 or over an up of sexual incidents abuse — — in defend- presence the incidents or even no one observed she had Apparently, the incidents. because that enabled apartment ant’s abuse, twin sister incident to the M.C.’s any conduct not observed testify. did not was the M.C.’s detailed disclosures emerged event that before incident, a shower M.C. and defendant described incident.” Both
“shower that she and M.C. testified entirely different. descriptions these occurring before activity with sexual together defendant showered *8 386 alone, that he and that
during the Defendant testified showered shower. description, he exited. In there tried to enter the as his was M.C. shower brief and accidental joint activity; touching no shower as he each outside the shower and M.C. other. passed occurred helped support of evidence have the State M.C.’s pieces may Two cannot was so as to determine our story, say strong that either we testified that and defendant each photographed conclusion. M.C. she nude, State poor-quality other while and the offered a Polaroid with photograph camouflaged pants dressed his photography Defendant denied the incident and stated the exposed. mother,
picture argued had taken M.C.’s J.C. Defense counsel been testimony could not M.C.’s because photograph support defend- in the photograph.. ant was not nude the State’s most
Perhaps probative supporting evidence was defend- during interrogation ant’s to a question police answer that he took to buy candy M.C. to a store “before we took the shower.” This answer occurred, however, during questioning in which defendant consistently denied that he and M.C. together had showered but agreed Thus, claims, denies, that each took a shower. the State together that defendant admitted that he and M.C. showered despite continuous denial of that accusation.
Although pieces these two of evidence favored the and the State trial, particularly focused them we cannot determine how each, them. For viewed defendant had a different explanation, one guilt. inconsistent with his a consistency difficulty also note argument the State’s that its
ease strong was so the erroneous admission of R.L.’s testimony was harmless in detail infra, beyond reasonable doubt. As we discuss R.L.’s prior testimony 404(b) bad act evidence admitted under V.R.E.
found pass test of balancing V.R.E. To 403. demonstrate rules, conformance with these the State had need for prior show Winter, State v. bad act See 388, 400, 648 624, 631 evidence. 162 Vt.
(1994) (State’s need for
of prior
is major
bad acts
factor in
Catsam,
State v.
balancing process);
366,
382-83,
victims whose is not considered entirely reliable has substantial Sullivan, (Wis.1998) see also State v. value”); N.W.2d probative (admission state conceded bad act evidence harmless where Thus, admissibility). the evidence that arguing need for evidence in for its *9 the court to admit entirely persuade the State labeled as not reliable that the overwhelming called us testimony persuade R.L.’s is now testimony harmless. admission of R.L.’s State v. in Lynds, helpful that is particular precedent,
We have one factor, the ofthe evidence examining strength properly-admitted this first Lynds, In a conviction because support in of the conviction. we reversed by allowing rights the trial court violated defendant’s confrontation clause an testified deposition expert generally admission of a of witness who family dynamics, delayed reporting issues of of child sexual abuse 42, 605 Lynds, at A.2d at 504. patterns and effects of such abuse. Vt. met the
The witness had never victim. State’s evidence consisted victim, in detail testimony regular who described sexual abuse and the of the by four-year period, deposition expert defendant over The defendant testified that conduct had not witness.
occurred, three of the supported victim’s brothers, who had not although testified observed abuse they lived in the house as defendant and the vietim and the same house privacy. Observing credibility lacked trial was a contest “[t]he the defendant and the having between victim with innocence, advantages of the the State’s presumption high burden proof testimony,” and the we concluded that the error supporting was not harmless. Id. 43-44, 605 A.2d at 503. Lynds
The only differences between this case and are the nature of witnesses, erroneously-admitted evidence and the fact that supporting existed, the extent they part of the case here and the State’s in Lynds. only defendant’s case Given that the direct evidence of the M.C., sexual abuse came from alignment we do not believe that the supporting high witnesses can be determinative under the standard for Lynds, harmless error. Consistent with we must conclude that the first harmless error factor in support does not conclusion that the error admitting R.L.’s was harmless. The second factor —the effect ofthe erroneously admitted evidence
— weighs heavier
If
against finding harmless error. we could view this
respect
logical
evidence
to the
relevance that
its
supported
admission,
agree
very
we could
with the State that it had
limited probative
evidence,
value. As we discuss
to the
of this
regard
below
admission
however, this was evidence of
child sexual
with a
high danger
abuse
prejudicial impact
jury.
the deliberations of the
We said of such
Catsam,
383,
State v.
think potentially inflammatory of no more evidence than similar prior Forbes, contacts.” amplified this statement State v. 161Vt. 327, 330, 640 13, 15 (1993): vigilant reviewing
We must be the admission of evidence of misconduct, uncharged once jurors because learn of uncharged misconduct, they tend to an entirely use “different... calculus probabilities” in deciding whether to convict. See Imwinkelried, Misconduct, Uncharged 1986A.B.A. Sec. Crim. (Summer) (quoting Ziesel,
J. H. Kalven & H. TheAmerican (1966)). fact, Jury 179 empirical several studies tend to confirm prosecutors’ beliefs introduction of a defend uncharged ant’s misconduct can “easily tip against balance the defendant.” Imwinkelried at 8 (referring to studies Chicago conducted Jury Project, the London School of Economics, and the National Science Foundation Law and Social Science Project); see State v. McCarthy, Vt.
155-58, (1991) (misconduct 869, 589 A.2d 873-75 evidence can “incendiary” have an impact on the jury).
The evidence in this case was particularly explosive prejudicial and because the victim of prior defendant’s sexual misconduct was his own daughter. In 155, 589 State v. McCarthy, 873, 156Vt. at A.2d at we labeled “ evidence of uncharged misconduct the ‘most prejudicial evidence ” imaginable.’ (quoting Smallwood, People (Cal. 722 P.2d 1986)).It is particularly telling that this Court has never before found that improper admission prior of bad act evidence was harmless beyond a reasonable doubt.6 find our
We
decision in McCarthy particularly relevant in our analysis
of this second harmless error factor. In McCarthy, the defendant was
charged with lewd and lascivious conduct with his daughter, and the jury
found him guilty. During the presentation
evidence,
the prosecutor
showed that in the past the defendant had been investigated by the SRS
for having oral sex with his son. Defense counsel failed to object to this
Plante,
State cited State v.
(1995),
evidence, came in numerous through which plain bad prior of the act evidence was appeal was whether admission highly effect prejudicial held that it was because of error. We gone could have “[t]he evidence the fact that case sexual misconduct jury complainant upon whether believed way, depending either defendant, testified, could beyond a reasonable doubt or believed who McCarthy, 156Vt. at to convict.” testimony not resolve the conflict 157, 589 holding We our as follows: A.2d at 875. summarized erroneously in this case admitted summary, court on ofdefend- of another sexual assault another
evidence children, evidence exploited and the prosecution ant’s acts unfairly suggest generally that defendant committed depended In a sexual misconduct his children. case ultimately complainant, of defendant and the credibility incendiary. evidence was Because there is a substantial such incendiary likelihood that defendant was convicted this evidence, reverse. by properly and not admitted we device omitted). (footnotes Id. at 158, 589 A.2d at error, it is very
It rare that we find and the burden to show plain See id. Although prosecutor A.2d at 873. extremely high. McCarthy much
exploited improper greater degree evidence to a here, did and the case are prosecutor than the the nature evidence cannot finding plain We error because of essentially justify the same. case and in similar case find error is harmless. very a one reasons, significant most
For the above we conclude two weigh against in harmless error a conclusion analysis heavily factors a of R.L.’s in this case harmless error. We the admission have beyond cannot conclude reasonable doubt would still R.L., if it convicted defendant had never heard therefore, must, grandfather. mother and reverse clause give him new trial because the confrontation
convictions seating in the violation R.L.
II. *11 retrial, on defendant’s likely Because the issues are to recur we address remaining appeal. argument issues on start with defendant’s 404(b). testimony in V.R.E. admitting trial court erred R.L.’s under issue, this the purpose considering our we address Consistent with testimony— admitting selected the trial court for the primary grounds by with M.C. was that R.L.’s that defendant’s conduct shows — the grounds other raised recognizing accidental that at trial.7 argument course of the on the motion limine and admitting the trial court erred in R.L.’s Defendant contends charged because it not relate to an element of the offenses or to his did accident, He neither nor argues placed defense at trial. that he claimed issue, intent at the was specifically and therefore evidence inadmissible 404(b). reviewing under V.R.E. trial court’s admission of bad 404(b), act evidence under Rule we determine the admitted whether so, action, to of evidence was relevant and material the cause and if whether was its prejudicial outweigh probative its admission so as to Parker, 393, 398, 545 512, 515 (1988). value. State v. “We 149 Vt. A.2d will reverse the trial court’s decision to admit if this evidence the court withheld or its discretion... and a right abused substantial of [the] Kelley, defendant was affected error.” Vt. 708, 710 (1995) (internal omitted). citations 404(b) of provides:
Vermont Rule Evidence crimes, of other wrongs, Evidence or acts is not admissible to prove the character of a in order that person to show he acted in argued beginning The State also from the that the evidence admissible to a show plan. picked initially by up judge common scheme or This was not rationale who limine, considered the motion but the court ruled the evidence admissible to show absence accident, rationale, primary opportunity the State’s and “to demonstrate to commit the determiningwhether 403,however, offenses.” In met the standard V.R.E. court plan added that the evidence showed a common scheme or defendant. The issue was revisited trial. The trial court ruled ... that R.L.’s evidence “would demonstrate, suggest, plan advantage young girls.” if not common scheme to take The —
judge suggested alternative respond an rationale that the evidence was admissible to vagina defendant’s claim it was incredible defendant would rub M.C.’s in J.C.’s apartment was in the when she next room. court noted that claimed R.L. that defendant her, thing enough did the same engage and this showed that defendant was bold this high despite discovery. conduct risk of charged judge jury The trial that it could bearing consider R.L.’s evidence as on capable taking having whether a chance of contact lewd with a child with person present intentional, another or whether conduct was accidental or primary argued by might rationale cannot State. We determine what rationale the considering have used in the evidence. Neither nor the State has addressed the first State’s rationale of common plan judge’s scheme opportunity. or the motion rationale demonstration of Both defend- rationale, judge’s ant and the State addressed have the trial alternative so have done only briefly, very trial and the court record related rationale is limited. We conclude cannot, briefing, effectively that we based the state of the record address
possible grounds testimony during alternative If the State admission. seeks to admit R.L.’s opinion, a retrial based on a rationale different from considered in this the trial can court develop appropriate an record for review. *12 however, admissible for other may, therewith. It conformity intent, motive, opportunity, proof purposes, such or absence of mistake identity, or knowledge, preparation, plan, accident. 404(b) uncharged evidence of “allows that Rule explained
We have
defendant’s bad
than
the
any purpose
proving
other
for
misconduct
admissible,
Forbes,
332,
To be
648 A.2d advanced, the issue to how theory to the is relevant proffered evidence case, and elements the disputed to the addressed is related which it is outweighed by substantially not evidence is value of the probative how the effect.” Id. its prejudicial accident, defend- generally or more argues
The State that absence (a) a Winter because: intent, for genuinely purposes in issue ant’s State’s element of the because it is an always intent is issue (b) offense; intent was the guilty not pleads once defendant proof in his interview defendant claimed in issue in this case because specifically the of his shower touching that M.C.’s police with the meet did not the evidence incident accidental. We conclude State’s both of the Winter’s reject in issue” “genuinely requirement why as to it did. rationales essentially the first rationale would note at the outset that State’s 404(b) is act evidence prior Rule bad general prohibition
negate (1) logic is or The State’s propensity. not admissible show character intentional, (2) intentional; bad act event was prior act was if the prior bad (3) intentional; is charged more similar conduct likely it is offense, the an element of the the State must show intent as because the State in issue. Since genuinely is relevant to an element it to be appeared act unless prior not offer evidence of a bad would argument intentional, acceptance of the State’s practical result of similar to if it shows conduct is that all bad act evidence is admissible prior charged that involved in the offense. that, element while intent is an argument in the State’s is
The weakness Indeed, if we were offense, “genuinely it is issue.” frequently into rationale, in issue” “genuinely we would turn the State’s accept us is described question before general in issue.” The rule “possibly evidence: treatise on bad act leading in the cases, implicitly has conceded most of these example, material fact. Suppose, existence of the By criminal. identity completely as the denies alibi, raising or in effect admits
denying identity the defendant crime, perpetrators at least when the mens rea of the general prosecution’s mental element is mens rea. The eyewitness testimony usually describes crime that was jurors will infer obviously voluntarily. readily committed testimony, mens rea from the and mens rea general implicitly practically in the sense that it is indisputed *13 conceded. (1999). 8:13, Imwinkelried, §
2 E. Uncharged Misconduct Evidence at 69 Thus, 1331, (N.H. 1993), in the Blackey, State v. 623 A.2d 1333-34 Supreme Hampshire physical Court of New held in a child abuse case day care center that state not in evidence of put prior physical could abuse of other at the day care center show absence of accident children where on she did defendant defended the basis that not commit alleged majority act. accord with the Blackey is decisions 159, 162 (Alaska 1998) See, State, point. e.g., Clark v. 953 P.2d Ct. App.
(intent must act to be seriously disputed prior bad evidence (Ariz. admissible); Ives, 1996) 762, 927 P.2d act (prior State v. 771 bad evidence genuine inadmissible where there was no issue of whether victim); Goodrich, 413, defendant molested State v. 432 accidentally A.2d (Me. 1981)(where occur, 417 defendant not alleged rape did State, of other or prove identity); Emory crimes not admissible intent v. (Md. 1994) 1243, 1255-56
647 A.2d Ct. Spec. App. (prior bad act evidence mistake); not relevant where never v. 992 Rogers, claimed 1999) 229, 235 (Mont. P.2d (prior bad act evidence of defendant’s intent intercourse); only irrelevant when issue was to sexual victim’s consent (N.J. G.V., 2000) (prior State v. not bad act evidence genuinely disputed admissible where there was no issue that intercourse mistake); Picklesimer, with child was result accident or State v. 599425, (Ohio 1996) (state
WL App. at *4 Ct. cannot use other acts evidence to or negate accident mistake when defendant has not raised
defense); (Ohio 1992) Smith, State v. 617 N.E.2d App. Ct. (evidence defendant, of other bad acts admissible to show mistake by witnesses, issue); state’s if mistake is at Blaylock Commonwealth, 97, 103(Va. 1998)(where App. 496 S.E.2d Ct. uncontested, genuinely probative
intent value bad act evidence value). outweighed by prejudicial moment, Imwinkeiried incident for the aside the shower
Putting Defendant was of this case. the circumstances exactly rationale fits M.C., his bringing vagina into the inserting fingers his charged with M.C., causing contact between mouth of in contact with the are based on charges penis. of M.C. and his hand the fall of 1997 or more from to 100times up that these acts occurred
M.C. of 1998.
through spring and his denial was allegations, denied these consistently Defendant at trial the motion in limine. He testified arguments clear not claim M.C. He did alleged by sexual acts and denied all of the nor in his accident, intent, opening a defense. Neither or lack of ofthe any committed argue did defendant’s counsel closing in his Nothing the criminal intent. did not have acts a claim.8 supported of witnesses such examination or cross-examination defense that he did explains, by relying on a As Professor Imwinkeiried acts, conceded” “implicitly practically a defendant has not commit if the found that he did commit that he acted with criminal intent supra, Imwinkeiried, Certainly, juror no who believes acts. 69. accidental. could conclude that the acts were
events testified M.C. whether the acts occurred.
This case about placed that defendant argument, The State with its second responds incident” touching during the “shower by claiming intent issue have some credence if defendant’s argument might accidental. That relation to the shower incident of the shower incident bore version *14 fact, descriptions the element similar in their is by only M.C. In described part a described the shower as a that both versions involved shower. M.C. fondling defendant’s activity, preceded by rubbing
of sexual the Defendant described brief organs continuing sex in shower. of the as he left the shower and occurring incidental contact outside shower contact Defendant denied that there was M.C. entered it. suggests cross-examining her video made such a claim M.C. The dissent he by unaware of to show that defendant was in the shower and was M.C.’s subsequent deposition trying to draw is at best. M.C.’s the shower. The inference the dissent is obscure into entry the the left the bathroom with shower was that she started shower, momentarily
running, notion that defendant would enter and returned to find defendant in the shower. The running the who turned it is incredible. The of on, a but be unaware of shower, point person not to a defense of cross-examination was to find in M.C.’s the discrepancies testimony, setup touching because was unaware that M.C. was in the accidental in the shower defendant that he was never in the shower with shower with him. Defendant’s consistent position M.C. he he together,
before took a shower and that and M.C. showered the points central description.9 M.C.’s — is, argues primarily timing issue as one when appear investigation, respond issues in the criminal the State must to even if they actually part argument them are not of the trial. The State’s make would more sense in a case where the State had no idea what the put would on defense be until defendant his evidence and under criminal Here, procedure identify rules that did not or the narrow issues.10 the the fully explored nature the evidence and the actual issues in trial were limine, the in defense the on motion and counsel made an hearing opening presentation that the identified defendant’s defense. At time R.L. testified, the the judge State and trial knew that defendant deny would all of M.C.’s accusations her version of the incident. including shower are argument.
There other reasons to the reject State’s Defendant was counts, charged with three a punishment two of which have maximum prison. theory, life in the Under State’s issue did not relate accident to offenses, the more serious but to the less serious of lewd charge 9Although the dissent does so we believe that much of the dissent’s say directly, position based on that M.C. described same shower but incident, misconception disagreed touching. juror on the intent involved the sexual the dissent talks about a Thus, touching added.) of M.C. in the shower was accidental.” (Emphasis “who believed defendant’s touching There is no evidence touching of accidental in the shower: M.C. described intentional touching in the and defendant described accidental outside shower, the shower. This same reliance on from other misconception pervades many precedents State,
jurisdictions
(Ind.
v.
cited
Butcher
the dissent. For
of this case would have been absurd. occasions, incident, allegedly even a separate isolated or few an might defense” have been improper touching, “possible of patent case involves an horrendous course issue. But this reasonable years. which continued for No depravity sexual circumstances, defense, theory would rely under these misinterpreted simply atrocious acts were these fatherly affection. expressions if the defendant committed the fairly
Nor can it be
said that
dispute
there
a material factual
with
question,
acts in
gratification.
he
sexual
As stated
regard
seeking
to whether was
(1989),
Stevens,
289, 301,
“necessary corollary principle to the requirement admitted to fact in issue... prove can be genuine, that the “issue” be and that other-crime requirements of these necessary proof.” for its Neither
satisfied here.
at 141-42.
(Ariz. 1996),
Ives,
charged
the defendant was
In State v.
[Defendant touched the in the proscribed Instead, maimer but did so by accident or mistake.
defendant consistently maintained he did girls not touch the any illegal way.... repeatedly The state has characterized portions of defendant’s testimony as admissions of touching girls----[Defendant only admitted that he touched L.M. to help her to a up cabinet and that he touched T.J. to dry her off a parents’ with towel at her It request. likely seems that many defendants charged with child molestation will have had legal occasions for touching victims. simply
There is no issue this case as to whether defendant “accidently” “mistakenly” rubbed the victims’ private parts.
Instead, the issue is whether defendant did the acts at all. As the trial transcripts very demonstrate, clearly the issue at trial was one of credibility; jurors did the girls believe the or did they believe defendant?
Id. at 771 (internal omitted). citations Winter’s
Under any reasonable construction of “genuinely in issue” requirement, a defense of accident was not genuinely issue in this case.
The trial court erred in admitting the prior bad act evidence based on this rationale. While the trial court must be accorded discretion in its evidentiary rulings, we find that ruling this was an abuse of discretion.
We also address the trial court holdings that
testimony
R.L.’s
met the
requirements of V.R.E. 403 because its probative value was not
substantially outweighed by its prejudicial effect. Again, this is a
discretionary ruling
court,
of the trial
reviewable here for abuse of that
Winter,
discretion.
399,
See
nature of the conduct was Clark v. e.g., different on the two occasions. quite See, (Alaska 1998) (the P.2d 159, 162 Ct. evidence of other misconduct must be similar to the App. touching accidental, defendant claimed the we cannot find that the legitimate probative value of R.L.’s evidence was strong. hand,
On the other even marginally relevant assertion that defendant had sexually it, abused his own daughter, got away with was highly prejudicial. Any evidence of a similar past unpunished crime creates a See id. As we discussed above, of unfair great prejudice. risk we have in other decisions labeled such extremely evidence as prejudicial. responds
The State portion” “relevant of R.L.’s only transcript covers two pages, and that the State did not even mention it in closing argument. go These considerations whether the court’s rulings Rule 403 were harmless since they emerged only after the rulings were made. We recognize that R.L.’s her father’s sexual abuse of her was brief because it involved one event. On the other hand, significant part accusation became a of the trial. Almost half of live witnesses testified about this event. Perhaps more damaging than *17 the event itself was R.L.’s mother’s police the responded to the accusation and that defendant has daughter never seen his since the accusation. The State did not mention the testimony in closing argument, but it, defense counsel did address it believing was too apparently damaging ignored. to be
There is another point about R.L.’s evidence which on bears the Rule analysis. 403 R.L.’s mother testified that the police became involved as a result of her The jury accusation. heard that the police involved, hear, did not prosecutor the conceded in a sidebar conversation to the judge, that defendant charged was not with a crime as a result of R.L.’s Winter, disclosure. We 401, held in 162 Vt. 632, at conducting a Rule 403 balancing, where the bad act is a crime that was investigated but not charged, the “weigh court must against admission the State’s failure to why allegation, show an that was not prosecuted... years ago, presented should be before jury the now.” The trial judge did not factor, consider this jury and the heard the accusation and not the result of the police investigation.
In summary, we conclude that the prior bad act evidence was not 404(b) under V.R.E. on the basis that it admissible showed absence of accident. 404(b) Even if it passed the Rule theory, test on this its probative value was far outweighed by effect, the prejudicial and it did not meet the standard of V.R.E. 403. act of misconduct charged). with which defendant is The real the evidence in this case point
was to show that defendant is a child abuser.
III. discretion, and violated abused its contends the court Finally, defense, to request his by denying right present constitutional his the State’s police During of his interview. audiotape hear the have the defendant, police asked whether prosecutor cross-examination of and “cocky” be appeared that defendant accurately had testified officer he had been Defendant denied that throughout interview. laughed had tape.” can play noted that “we laughed, prosecutor cocky in its played counsel, tape response, requested Defense not the State did Although demeanor. entirety to demonstrate fifty minutes was about tape it noted that oppose request, which the statements potentially prejudicial other length, and contained into and which would be get earlier disinclination expressed court had admit a redacted ruled that it would to edit out. court difficult noting play tape, request denied the of the interview but transcript Thereafter, redirect. the demeanor issue on defendant could address “nervous, examination, uptight, that he was defendant testified on redirect The court police interview. distraught” during a little bit just issue that counsel respect to the demeanor subsequently observed your context on redirect.” “put had that in... based its ruling, apparently in its the trial court
Although explicit it would cause audiotape to exclude the V.R.E. because decision time, of cumulative presentation or needless delay, “undue waste of noted, concern about expressed As the State had evidence.” V.R.E. 403. and the need to redact irrelevant recording of the audio length throughout tape. prejudicial statements
potentially ruling admissibility enjoys The trial court broad discretion 403, rulings solely for Rule and this Court reviews its evidence under 18, 23, 595 A.2d McElreavy, of that discretion. State v. Vt. abuse *18 (1991). Here, that the trial court had the benefit we note 1334-35 interview, and of accounts ofthe hearing both the officer’s defendant’s overall prejudicial impact measuring potential their relevance and issue judgment The trial court’s that the demeanor context of the trial. defendant, through examination of adequately could be addressed redirect he nervous and subsequent explanation that was and defendant’s interview, no to conclude that the court during the leave basis distraught no we discern error. Accordingly, its discretion. abused Reversed and remanded. CJ., Amestoy, I dissenting. agree with the majority that the trial — — findings
court’s on the need to seat R.L. a child witness with her to inadequate. deficiency back defendant were I do not agree requires judgment. reversal of the The evidence at the heart the State’s victim, videotaped deposition testimony seven-year-old case —the —M.C. leaves no doubt that the would have reached exactly testimony. mistaken, well, same result without R.L.’s majority concluding 404(b) that R.L.’s was under inadmissible V.R.E.
prove that defendant’s misconduct was not the result of accident or placed mistake. Defendant his intent at issue to admit the sufficiently testimony, as the trial court here reasonably concluded. I therefore respectfully dissent.
The Sixth Amendment issue arose in response to the State’s motion for R.L., a special seating arrangement years who nine was old at the time and had not seen defendant since she had alleged that he molested her years two earlier. The trial approved court an arrangement whereby the child sat at a table in jury, front of the with her back to defendant. As the correctly observes, majority invalid; this arrangement was not necessarily right absolute, to confrontation is not give and may way upon an adequate showing necessity to protect the welfare of a child witness.
Maryland Craig, (1990). 836, 850-55 497 U.S. The problem here arose because the court failed to specific findings make on the record that the accommodation necessary to avoid causing the child emotional trauma, as the high court has required. See id. at 855-56. however, regard, it is worth noting although defense objected
counsel to the seating arrangement, objection was principally on the basis that defendant had an right absolute to physically confront witness, a right which is qualified. object Counsel did not ground that the showing State’s need justify insufficient proposed seating arrangement, the issue which defendant has raised on appeal. object Nor did counsel that the court’s findings response to the State’s motion were Although deficient. objection may have adequate been preserve review, the constitutional claim for proper objection would provided have the trial court an opportunity to determine of Craig had been whether the requirements satisfied, and make the requisite finding of need on the record.
Nevertheless, notes, as the majority the trial court’s failure to make the requisite finding of need does not mark the end inquiry. of our Confrontation Clause are subject violations to harmless error analysis, focusing on strength of the remaining potential evidence and the Iowa, v. Coy prejudice of the improper otherwise evidence. 487 U.S.
400 that the trial majority concludes (1988). light, in this Analyzed a doubt beyond reasonable deemed harmless omission cannot be
court’s testimony, victim’s was the guilt other evidence because the argument Neither highly prejudicial. evidence was because R.L.’s analysis. withstands contest,” as the swearing
First,
merely “a classic
this case was not
uncorroborated.
asserts,
the victim’s accusations
nor were
majority
to a child
eyewitnesses
is
to adduce
385,
any doubt that testimony. absence of R.L.’s M.C.’s, testimony, in contrast to was of R.L.’s brief
The substance to define “privates,” which she was able defendant had once touched characterizes the penis. Although majority vagina as the 388,817 explosive prejudicial,” Vt. testimony “particularly as — every attorney who otherwise utilized deputy state’s A.2d at — R.L. evidence made no mention of possible incriminating piece case, Thus, in the context of this the record closing argument. beyond error here was harmless the conclusion that supports doubt. reasonable R.L.’s that the substance of majority also claims 404(b) act evidence. The under V.R.E. bad
improperly admitted theories, that R.L.’s argued, among had other contact between defendant and M.C. was relevant to show that “the “intentionally, mistakenly, and not accident,” and an that the evidence was agreed, ruling The trial court assaulted M.C.” of accidental sexual contact. admissible on the issue relevant and Contrary majority to the trial court’s express finding, holds that placed based, defendant had not holding his intent at issue. This in my view, upon a mistaken reading the record and the law. Detective Demar although testified that engaging denied in sexual contact *20 C., heM. admitted that it possible was that M.C.’s hand had accidentally touched his getting while she was into his shower he getting and was out, and defendant later touching admitted that the had occurred. Defend- ant gone also told the detectives that he had to the with buy store M.C. to her candy “before we took the shower.” Defendant further described an incident in which he was playing girls they allegedly pulled when pants down his and M.C. up reached grabbed penis. During the M.C., videotaped deposition defense closely questioned counsel incident, minor about the shower attempting to establish that defendant was unaware presence. M.C.’s This line of questioning by defense counsel tended to corroborate defendant’s pretrial statement to Detective Demar that touching was inadvertent and accidental.
While this Court fully has not explored the circumstances sufficient to put the question “genuinely issue,” Winter, intent State v. 162 Vt.
388, 393, 648 624, 627 (1994), other routinely courts have held that may intent become sufficiently material warrant the admission of prior through means, bad acts evidence a variety of including the defendant’s statements, pretrial statement, defense opening counsel’s counsel’scross- witnesses, examination of the State’s or See, defendant’s case-in-chief. 637, (Ariz. v.
e.g., 1981) (defendant State Mincey, 636 P.2d 653 opened prior door to through crimes evidence statement), counsel’s opening cert.
denied, Arizona, Mincey v. (1982); 455 State, U.S. 1003 v. Butcher 627 (Ind. 855, 1994) (defendant N. E.2d App. 858-59 Ct. placed his intent at through issue pretrial statement to the police claiming that the victim had touching caused the by pulling her); State, defendant toward Day v. 1, (Ind. 1994) (defendant
N.E.2d Ct. App. placed his intent at issue through defense counsel’s cross-examination of the two victims which “suggested the lack of intent [defendant’s] as emphasized the innocent nature ofthe touches being made a game tag”); People (Mich. Vandervliet, 114, 126-27 (defendant’s v. 1993) 508 N.W.2d general denial sexual misconduct with minor preclude did not admission of other acts evidence pretrial where defendant’s statements claimed that touching accidental); State, (Okla. 356, Welch 2 P.3d Crim. (defense
App.)
counsel’s opening statement and
questioning witnesses
raised issue of
or
mistake
sufficiently
accident
to warrant admission of
evidence),
denied,
other crimes
Oklahoma,
cert.
Welch v.
demonstrating battered falling injured herself that child had statements pretrial claimed had couch).1 from for the act evidence treatise on bad also cites a majority
The the defendant when genuinely is not issue that intent rule” “general E.2 identity an or alibi defense. by raising mens rea concedes implicitly (1999). § Evidence at 69 Imwinkelried, Uncharged Misconduct — rule, it is general merits of the Whatever point inapposite. — has doubt that a crime there is no of assistance where my view can be characterized I that mens rea accept committed. been describes eyewitness testimony prosecution’s “undisputéd” where (as, where witnesses obviously example, committed for crime and the defendant assault), has unprovoked perpetrator’s have seen defense. In example, an alibi through, the perpetrator denied he was sufficiently material allow case, cannot said to be such a intent evidence, of the defend- jury’s determination of bad acts since use rejection of the entirely upon acceptance their guilt depend ant’s will alibi. *21 observes, correctly rather majority As the very
This is a different case. committed, describing obviously a crime having eyewitnesses than Apart direct corroboration. of sexual abuse had no allegations victim’s to credibility earlier that lent evidence described from the circumstantial a “classic might here have described allegations, the victim’s the evidence suspicious conduct that defend- swearing piece for the one contest” but That, course, credibility. deny jeopardizing ant could not without significance different view of the incident.” I have a much was the “shower majority. of this incident than does the buy officers that he took M.C. investigating
Defendant admitted that, despite this majority *22 but rather that touching “defendant described accidental outside the as he exited shower,” M.C. at majority entered. 174 Vt. 817 A.2dat 41 n.9. n.9, Thus, concedes that defend ant intent the fact that issue; M.C.’s version of placed the incident differed somewhat nothing from defendant’s does to undermine the point. “Although Rule 403 evidence if provides: relevant, excluded its value is may probative outweighed danger prejudice, of unían- substantially confusion of the or issues, misleading jury, or considerations of undue waste delay, time, needless of cumulative evidence.” presentation addition, the court testimony during closing argument. to her
reference of her confining the relevance to the limiting instruction issued court abused its discretion agree I testimony. Accordingly, do not its impact outweighed so testimony, prejudicial or that its admitting See judgment. reversal require value as probative (1987) (record did not Catsam, 366, 383-84, 534 A.2d 148 Vt. its discretion or withheld that court abused conclusion
support logical relevance given misconduct admitting evidence instruction). limiting and court’s effort to inconsistency in the State’s afatal Finally, majority posits admission, for sufficiently probative testimony as characterize R.L.’s dynamic decision. The jury’s to have affected the insufficiently probative however, of relevant evidence trial, in the admission frequently results fully entirety, the record here in its ultimately importance. little Viewed if guilty, been even the verdict would have the conclusion that supports judgment. I affirm the Accordingly, would R.L. had never testified. System of Vermont Teachers’ Retirement Jacobs v. State
Susan 517] [816 A.2d No. 01-474 Morse, CJ., Dooley, Skoglund, Amestoy, JJ. Johnson Present: 6, 2002 September Opinion Filed Reargument November and Amendment Denied Motions Storrow, & for Plaintiff- Charles F. Storrow Kimbell Montpelier, Appellant. we took the The notes “before shower.” candy that he and M.C. statement, consistently thereafter denied of the incident defendant’s later version together. showered But even of defendant and M.C. were so “separate” showers conceded compelled to that M.C. explain that defendant felt closely related time suggest that a defendant federal authorities submitted only The by supplemental the admission of issue, as a contested in some cases remove intent thereby preclude may through to indicate clarity statement to the court sufficient bad acts “some evidence, (2d 1989); v. United States Colon, 880 F.2d Cir. issue will not be disputed.” Garcia, Jemal, 1994); v. 1267, 1272-74 (3d United States Cir. see also United States 26 F.3d (1st 1993). was no the merits this there Cir. Whatever 1160, 1173-76 983 F.2d approach, case. such statement or stipulation have may accidentally touched his while she into the getting shower and he was getting out.2 The “accidental touching” defense to the shower pertinent incident was counts, the lewd and lascivious but to the charge, other as well. have previously “many juries, observed that people, including judges, it find difficult to believe that [sexual children] abuse of happens.” Forbes, (internal 327, 332, 640 13, 16(1993) State v. 161Vt. quotation omitted). true, and citation It may majority as the no speculates, that juror testimony who believed M.C.’s could conclude that defendant’s actions were accidental. But it least as valid to speculate juror who believed defendant’s touching of M.C. in the shower was accidental would also conclude that none of the other acts occurred. The relevance of the accidental touching explanation all of the charges was well by defense, understood prosecution, and the court. question The here is not whether evidence falls within an exception to supposed exclusion, rule of but whether the “evidence any way [is] relevant to a fact in issue other than showing propensity.” mere Vandervliet, (internal omitted). at 121 quotation N.W.2d and citation Notwithstanding denial, general the record and the law amply support trial court’s conclusion defendant had placed his intent sufficiently at support issue to testimony admission of R.L.’s under the 404(b). “mistake or exception accident” to V.R.E. . The majority argues probative also that any value of R.L.’s substantially outweighed prejudicial impact its under V.R.E. 403.3 Again, the record does not support the claim. Although clearly relevant to rebutting defendant’s claim accidental or inadvertent touching, R.L.’s extensive, was limited. In contrast to M.C.’s videotaped testimony graphically describing multiple acts of sexual misconduct by defendant, perpetrated pertinent R.L.’s testimony consisted aof few questions brief and answers to the effect that defendant had once touched while privates watching television. Defense counsel asked cross-examination, no questions R.L. and the prosecutor made no majority asserts that touchinginthe was, there no evidence of fact, accidental shower,