State v. Shippee

corporate funds her then husband 2003VT 106 family and others because the court ex- STATE of Vermont v. Vernon T. adjudicate pressly dur- SHIPPEE ing parties’ divorce. See 169 Vt. 730 A.2d at Nor the facts of [839 566] Slansky Slansky, this case like No. 02-081 (1988).In 553 A.2d 152 that case we judgment held that a did divorce preclude subsequent a claim tort spouses between because the divorced during was claim neither raised di- 1. November 2003. Defendant necessary nor vorce to its final resolu- Shippee appeals Vernon T. conviction tion. See 150 guilty after a found him lewd Instead, similar to collateral lascivious conduct in violation Tudhope, attack seeks a decla- Claire argues appeal § V.S.A. 2601. He that: ration that at of the least some funds in (1) subjected arbitrary he was company the trust were funds which discriminatory enforcement because he estate, added value to the marital §2601, was under 13 a V.S.A family court account for felony, rather than under 13 V.S.A. property value in its extent award. 2632, misdemeanor; (2) a the trial court disagreed property that Claire with the by admitting, erred family award based on the court’s find- dence, videotape testimony regard- ings ownership disputed ing defendant’s another funds, proper avenue relief was store; (3) it was error for the court either an to this or a motion police admit officer’s be- family court to set aside di- impermissibly cause it bolstered the judgment vorce under V.R.C.P. credibility hearsay statements disposition, 12. Because of our we do victim; the child not reach Michael’sadditional denying court erred in mo- defendant’s Claire, was who not a shareholder of produce tion to the State to PayData brought, when the was action child victim as a witness. We hold bring cannot a shareholder derivative the trial court dis- failed exercise its action, standing and that she also lacks cretion under V.R.E. 403 when it admit- bring respect an action with to the trust. ted regarding the evidence defendant’s therefore, and, prior conduct reverse Affirmed. remand. 2. The State defendant with exposing lewd and lascivious conduct for masturbating in front of young child store. The charge was based al- leged May facts. On T.P. (mother) shopping Wal-Mart E.P., five-year-old daughter, her man, defendant, ap- later identified as proached According them. to the testi- mony, closely defendant followed them throughout Subsequently, the store. July family watching a again sought to introduce story that showed on television news videotape the Ames picture in connection with reviewing tape, E.P., employee. playing in the After case. who was request, judge granted and al- story, approached the news room tape and unexpectedly to admit the lowed mother and said her testimony. jury returned a verdict of a “bad man” the man on television was sticking guilty. private parts out” who “had his ¶ days they two af- scratching 6. October “was himself’ when On and trial, promptly defendant filed a motion to dis- ter were Wal-Mart. Mother argument on his police, police detective miss based notified the and charged him with a investigator should have interviewed E.P. State and SRS 2632, § investigations prohibited act under 13 police special office. V.S.A. misdemeanor, las- instead of lewd and was then arrested and even- 2601, § § under 13 tually charged 2601. civious conduct V.S.A. under 13V.S.A. motion, ¶ trial, felony. and to The court denied the 3. to moved Prior State E.P., hearsay appeal followed. statements of this introduce Specifically, the to 804a. I. sought to introduce statements State by E.P. to her mother and the ¶ 7. defendant claims he police interview. In detective discriminatory subjected arbitrary to were that the child’s statements charged because he was enforcement 804a, hearsay admissible felony § with a under 13 V.S.A. 2601 presence noted of “substantial instead of a misdemeanor under 13 indicia of trustworthiness sufficient 2632, § the court there- and that V.S.A. consider, jury weigh and allow the by denying to dis- fore erred his motion dispose of the information.” merit. miss. This lacks When 2000, February 4. In filed a State overlapping there are criminal offenses of Prior Bad Acts” in which it “Notice could be with which defendant stated its intent introduce facts, prose- within the based on the it is prevention specialist a loss at Ames among cutor’s discretion to choose them. 1998, that, 3, Department May Store 641, 637, Perry, v. State observed, and recorded on closed (1989); v. 1010 United States video, approach circuit defendant a Batchelder, 442 U.S. young “play” store with child in the (“This long recognized motion, himself. The court denied the an act violates more than one crimi- when subject to further motion for introduction statute, may prose- nal the Government trial, finding prejudi- that the “unfair long cute under either so as it does not out- cial effect is not [of evidence] against any discriminate class of defend- weighed by value.” ants.”). trial, week before the State One that, argues 8. Defendant further informed defendant’s counsel letter doctrine, void-for-vagueness under the as to the State was uncertain “sufficiently precise § 2601 lacks V.S.A. testify would call E.P. to whether it arbitrary and dis- standards to avoid that, therefore, counsel criminatory v. enforcement.” See State subpoena would have to E.P. if he wished Purvis, 441, 442, 505 A.2d presence at to ensure her trial. Defend- Because First Amend- required requested that E.P. be ant here, implicated ment interests are not trial, testify morning base our examination of the we must untimely. court denied the motion as application to defendant statute on its trial, During held on October presented, and not on the and the facts possible application appeal, statute’s to others. In order claim error on Dann, timely Vt. defendant is amake provides Section 2601 to the admission of person guilty open gross context, apparent “[a] and if it is not from the lewdness and lascivious specific ground behavior shall be he or she must state the imprisoned 103(a)(1). years objection. not more than five for the One of $300.00, primary fined not more than purposes both.” 13 behind this rule § requiring specific objections V.S.A. Defendant was is to suffi violating ciently V.S.A. 2601 based on alert the trial court to the exposed facts that he himself and mas so that the young turbated in front of a intelligently quickly. child at a can rule Purvis, Bissonette, store. As we found in 1231, 1237(1985); Bryant “the v. Consol. Rail sufficiently (1st Corp., statute is certain to inform a intelligence of reasonable In this September to trial in Thus, proscribed.” of conduct is proffer the court denied the State’s by denying the court did not err defend videotape act ant’s motion to dismiss. under because its outweigh prejudi its unfair II. cial effect. One month later again moved to admit that evi ¶ Second, argues dence, objected to its admis by admitting, trial court erred sion on “propen that it was 404(b), Vermont Rule of Evidence sity” evidence. videotape testimony regarding 404(b) “go 11. Rules 403 and hand in fendant’s conduct at another de glove” par because “describes a partment store as evidence. ticular might form of evidence that create Defendant also claims that the court prejudice’ the ‘unfair anticipated under failed to exercise its discretion under Currier, 403.” United [Rule] States v. V.R.E. 403.* (1st 1987). Thus, F.2d even single where the issue on whether the improp trial court erred in * provides Rule 403 that: erly admitting prior bad act proba- be excluded if its 404(b), proceeded we have to examine the substantially tive value is admissibility Rule 403: danger prejudice, the of unfair “[A]ssuming proffered that the issues, confusion of the misleading requirements 404(b), meets the of. jury, considerations of un- pass the evidence must also the Rule 403 delay, time, due waste of or needless test, balancing in which the presentation of cumulative evidence. compared any of the evidence is 404(b) states that: prejudicial unfair effect.” State v. 648 A.2d 624, 631 crimes, wrongs, Evidence of other necessary 12. Given the interaction prove or acts is not admissible to 404(b) determining between and 403 in person character of a in order to show admissibility acts conformity that he acted in therewith. objection the context in which the however, may, It be admissible for made, the court’s purposes, proof as such of mo- grounds, on Rule 403 the defend- tive, intent, opportunity, preparation, “propensity” objection was suffi- plan, knowledge, identity, or absence ciently specific to alert the trial court of mistake or accident. tape they mother and in the another, one and to for our within few feet of Bissonette, Shippee Vt. at and the child’s review. Cf. Mr. mother, (finding that defendant’s but the mother can’t can, Shippee. The child Mr. obviously Shippee grounds that it was “collateral” and not and Mr. is 404(b) grounds playing charged. was not sufficient to with preserve objection I view this as review under So pro- because it did not draw the dence. I don’t think this is pensity. court’s attention to defendant’s concerns This is a man- 404). Therefore, committing offense under Rules 403 and ner of — discretionary agree turn to action of so I’m I have to first making trial court in a decision under that this is admissi- State] [the the 403 test because our decision on this ble for that reason because the issue is determinative. has been made to the being 13. The discretion of the trial court is where the mother there, know, reaching right you broad when decision based on it but, balancing happen test under Rule 403. couldn’t Wheel, fact, tape here’s a that tells me claim, prevail happened on his this is — what prove happened fendant must the court either com it has before and pletely withheld its discretion or exer how this it. has done So clearly going cised it on untenable or for that reason I am Dorn, unreasonable. State v. that that’s find admissible. So — 451, 457(1985). you you put can can on that tape. we have not While to show that specify precise weight trial court to it Although we accord a court “wide discre- test, balancing accords each in the factor balancing tion” in value of — espe- there must be some indication against danger the evidence of unfair cially in cases like this one where the prejudice, we have found abuse of discre- — potential high for unfair notwithstanding showing tion actually engaged the court in the performed balancing. trial court Win- balancing test and exercised its discre- ter, 648 A.2d at 631 tion under V.R.E. 403. v. Der- (“The performed balancing trial court ouchie, here____[but] accounting for the [e]ven (1989) (holding that record was sufficient discretion, court’s wide we conclude that to show exercise of discretion substantially value was out- court). We find no such indication here. weighed by danger preju- of unfair admitted the evidence dice.”). Here the court reviewed the ad- trial, stating: missibility of the evidence under V.R.E. 404(b), just tape sign I did review that ... there is no weighed it’s remarkable that the child is the evidence under shopping despite high prejudice. cart and the risk unfair pushing shopping persuaded by mother is are not the dis- immediately “opened cart and is behind sent’s view that defendant tape. the child. But because it’s in a door” to admission of the we department store with the note that the trial court did not indicate racks, effect, Shippee admitting is Mr. that it was the evidence on that Second, pretrial ruling around corner from the child’s basis. balanc- Cardinal, ing danger prejudice cre- v. 584 A.2d of unfair 1152, 1154(1990). tape against ated admission of its past probative value concluded that the risk of evidence of acts is of When great prove identity, prejudice was too absent “devel- fered to we it presumably opments at trial” that would meet a strict test to be admis relevance only Bruyette, to a if an sible. lead different outcome 604 A.2d Identity in the value of the must be a material issue increase danger jury, prior evidence before the act evidence prejudice. weighing place, logically such took must be relevant to the No issue identity, do and we not share the dissent’s view and the value of the outweigh potential value of evidence must 27-29, preju- prejudice. was clear and the unfairness of its id. at See 604 A.2d 1272-73; impact apparent. dicial In re Cf. Nash, (1994); 539 A.2d 648 A.2d Sweet 418, 434-42, (holding Roy, that there was no abuse identity of discretion in evidence where If is issue in the appropriate trial court considered the the court is prejudice, “probative past factors of unfair whether the characteristics of the clear, idiosyncratic value of act are so [was] similar and as to any unfairness of claimed be earmarked the handiwork of the ac [was] cused, effect, readily apparent”). to constitute the defend light disposition signature. Bruyette, 16. In of our of de- atVt. argument regarding fendant’s the admis- 604A.2d at 1273. evidence, unnecessary Bruyette, sion of is examined testimony on whether address appeal. girlfriend prior about their consensual identity sexual conduct was relevant to Reversed and remanded. signature and therefore admissible as evidence under Rule when the J., Skoglund, concurring. I con- sexual were distinct and plurality opinion cur with the substantially perpetrated similar to those by failing trial court abused its discretion on the victim of a sexual assault. Id. After weigh under V.R.E. establishing deciding prior whether crime evidence is because the victim was blindfolded dur 404(b). admissible under V.R.E. I write assault, ing the we noted that to admit however, separately, because I would signature also find the trial court erred in pattern characteristics finding distinctive, effect, act “must be so store clerk and the closed-circuit video signature.” constitute the defendant’s regarding past acts to be 604 A.2d at 1273. We further ar dence admissible under V.R.E. saying: ticulated the standard 404(b) designed 18. Rule to exclude evidence of similar acts if the evi Although acts dence is introduced to show that accused and the acts do propensity ahas to commit the identical, they not have to be Bruyette, offense. State v. possess common features highly likely that make it admitted, Prior act evidence be can how perpetrator the unknown ever, different, prove if it is relevant per- the accused are the same legitimate element in the case such as son. Whereas a few common intent, identity, plan, knowledge. ¶ prior by unique may act offered 23. The evidence features that are be signature sufficient, larger in this case was not number of remarkable, them, identity two reasons. evidence for less noted, we was in the case. As together, taken also have consistently prior when significant probative value. held that signature proffered as acts are 28,604 1273. A.2d at identity perpetrator of the must be a the ¶ rule, Applying held jury. the before material to the taken “[w]hen sexual present at the defendant was Whether gether the statements dispute here. The the scene was never in girlfriend the victim the and were forced only question was whether the repeat, frequent defendant’s to and the offense, prior the and act committed activity, of use cocaine evidence was offered to illustrate the strongly to show that evidence tended which the could have manner in offense perpetrator.” was the Id. at been committed. Sweet, also 1273. See Second, ¶24. prior although act (applying offense share some Bruyette past in ease evidence of where features, nothing there is within common pattern conduct of distinctive and vandal prior pattern or characteristics of the park of ad ism mobile home owner was so distinct constitutes act that is that it brought by in ease mobile home missible “signature.” Neither the identity perpetrator of the owner way in the defendant followed the which prior unique act was issue and the shopper positioned in view of himself sufficiently to the similar parent, and not the nor the child highly likely to offense make it himself, exposed which manner in is in perpetrator were the fendant same any way unique idiosyncratic. or There is person). nothing unique get- act also about the of emphasized that in order attention, ting only many the child’s as signature admit evidence shoppers could have done so with has the “[t]he burden benign solely Similarly, intentions. it is proffered show evi how reality nothing an about unfortunate advanced, dence is relevant to the exposed the defendant the issue to it is how which addressed allegedly masturbated front of the disputed related elements in the type child is unusual distinct. This ease, how the certainly does not constitute substantially outweighed evidence is not “signature” criminal sufficient behavior by prejudicial effect.” perpetra- identify the defendant as the A.2d at 627. To hold otherwise tor to the exclusion of others. permit prior to use act would by act evidence offered The identify the defendant as the State should have been admitted perpetrator simply because he she signature case in this has, times, at other committed the same pattern not at issue variety garden criminal act. This past and characteristics of the acts were nothing identification is based more insufficiently identify distinct to the de- propen inference than forbidden basis, perpetrator. fendant as the thisOn sity. Berger, See 2 & J. Weinstein M. I would reverse trial court’s Weinstein’s store clerk’s testi- (J. ed., McLaughlin ed. 2d 404.22[5][c] mony video closed-circuit were signature evidence admissible under opened 30. Defense counsel later that Jus- authorized to state 26.1 am of this evidence door to admission joins this concurrence. tice Johnson impos- been implying it would have (Ret.), ¶ Allen, Specially As- C.J. expose himself to defendant to sible for signed, dissenting. I would not reverse pres- given physical the victim the close grounds conviction defendant’s child’s mother. The State ence of the majority and therefore identified prior bad defendant’s moved to introduce dissent. The video- act to rebut this insinuation. virtually sup- no 28. Defendant offers act showed tape of defendant’s earlier the court erred port for his claim that used store shelves how defendant balancing test under failing to conduct a activity view. from the mother’s shield 403 before objected propensity act. Defendant’s a Rule 403 but did not raise solely appeal consists objection. court admitted the “Furthermore, sentence: evidence, explaining bad act as in trial court never viewed to the “the has been made that 403, Judge light as did Bur- of V.R.E. there, being right jury where the mother gess, prejudicial effect who found that its know, happen you it couldn’t that by any probative outweighed was not but, fact, tape that tells me in here’s clearly inadequate brief- value.” This is — happened it has this is what claim. ing, and I would not address this happened and how this has before 28(a)(4); Johnson John- See V.R.A.P. going I am done it. So for that reason 857, son, 160, n.*, 605 A.2d 158 164 Vt. Thus, find that that’s admissible.” (1992) (Supreme will not 859 n.* Court engaged record reflects that the court adequately not consider balancing test before trial the Rule 403 briefed). opened the door to and defendant later importantly, to the extent 29. More the admission of this evidence. the court is to conduct Rule erroneously majority con 31. The balancing prior to 403 test cludes that the trial court’s failure to 404(b), the record evidence under V.R.E. balancing conduct a 403 test war Rule balancing oc- demonstrates that such conviction. rants reversal of defendant’s gave notice curred. Before However, this has conducted the 26(c) intent of its V.R.Cr.P. balancing test in cases where the itself that defendant had to introduce evidence prejudicial effect are value and activity engaged four in the same record. v. Der evident from the In State in another weeks earlier ouchie, 416, 153 419 Vt. store. The evidence consisted of testi- (1989), example, for we concluded that mony employee from an at the store and the trial court had exercised its discre videotape. The court closed circuit tion under Rule 403 based on the trial balancing before conducted the Rule 403 “going to court’s statement that it was let opinion concluded trial and in a written the cocaine evidence.” concluded this evidence should be excluded on that the record did not indicate de- 403 absent a claim prejudicial effect of the admitted evi allegation against him fendant that the overweighed “so dence developments was “incredible” or “until have been value that the evidence should trial make the introduction of the as a matter of law.” Id. As in excluded imperative, other bad acts or unless the Derouchie, amply here dem the record opens the door to its defense otherwise onstrates that the value of the admission.” preju admitted evidence its effect, fight particularly in of de dicial

549 1989) (objection premised incident to evidence on fendant’s insinuation preserve objection could not have occurred in the mother’s F.R.E. 403); presence. met his United not under F.R.E. States Sandini, (3d heavy establishing burden 1986) (objection or exer “ir trial court withheld discretion that evidence was grounds clearly cised error it on untenable or relevant” did not claim of Parker, See 149 F.R.E. unreasonable. State v. under F.R.E. 403 or 401, 545 A.2d (1988). timely specific Vt. 1133.The need for where, Finally, alleged objection particularly extent this relevant all, here, judge presided error should be addressed at I believe who at trial our review should be error not con consider the motion cerning admissibility rather than abuse of discretion because of defendant’s Senecal, object defendant did bad act. State v. See grounds at trial. A cannot Senecal, claim error in admission of evidence that a concluded timely unless he has made a waived had his claim that the court erred 103(a)(1); objection during denying suppress trial. V.R.E. motion Fisher, object State v. defendant failed to at trial to the objection “The admission of the evidence that had sought suppress. been made at time the earlier Id. at asked, offered explained or the 351. We ground pre object one does not fendant’s failure to would not serve the resulted in a waiver of his no claim had Fisher, grounds.” Vt. at new facts been had adduced trial and (internal omitted); judge presided citations the same as had trial Berger, also 2 suppress. J. & Weinstein M. decided motion However, Weinstein’s 497 A.2d at 351. because 403.02[l][b], (J. §§ McLaugh judge had ruled on 404.23[5][e] defend 2003) ed., (trial motion, lin 2d ed. court’s decision earlier the trial to admit evidence opportunity under F.R.E. “never had an to consider to, generally subject abuse review for evi discretion, that, if no made at “[pjarticularly dence.” Id. We stated error, evidentiary pretrial rulings trial to claimed review since tentative revision, plain only). preserve subject will be for error cannot be said a to the admission of use trial would have been a 404(b), party performance a less would not specific objection during raise a trial. apprise served to further court or (cita addressing Federal courts the same issue of claim.” Id. [defendant’s] tions, marks, quotation ellip under the Federal Rules internal omitted). Thus, a reached similar conclusion. See ses because defendant Notes, (“Federal Reporter’s trial, object V.R.C.P. 1 failed our review Id.; interpreting cases plain only. Rules are for error see also Morris 358, 363-64, an interpre Fayette, source authoritative for the seau v. 164 Vt. (1995) (“[I]n cases, provisions tation of identical Ver A.2d criminal Rules.”); mont also States v. United defendants to seek a ‘horizon Gomez-Norena, appeal’ pretrial rulings 908 F.2d 499-501 tal a (9th 1990) (objection judge judge Cir. on F.R.E. different so that the trial 404(b) grounds preserve put judge’s claim of rul error another 403); Jewell, error ing.”); under F.R.E. United States v. State v. Manso-Portes, (7th (“Failure A.2d 2003VT of evidence object to the admission subject aof earlier the that was trial v. Sean WADE of Vermont STATE constitute a waiver to exclude will motion judge presided at trial a different where 559] [839 motion.”). decided the than No. 34. In this concerning defend that evidence decided act was not admissible unless Rule 403 admission at trial. opened door to its The Windham 1. October the evi judge later ruled that The Attorney appeals from County State’s because defendant was admissible dence dismissal District Court’s the Windham com implied he could not have had The aggravated assault conviction. of an charged act. the absence of mitted sanction the was dismissed to Wind- case trial, objection at a Rule 403 Attorney’s for County Office ham State’s error on raise this claim of not now repeated discovery.violation, as well as consistently held appeal. This Court cases. conclude in other violations an issue its discretion trial court abused speci “present party must the issue by dismissing the conviction because gives ficity clarity in a manner which discovery violation opportunity to rule trial court a fair defendant, we reverse. and therefore White, it.” In re Windham On June 1264, 1270(2001)(internal quotation Attorney County filed Dan Davis State’s omitted). purpose marks and citation charges against defendant Sean Wade preservation rule “is to ensure arising an aggravated assault from oppor original given an forum is Falls bar. Wade altercation in Bellows our tunity an to rule on argument with another bar got into an 779 A.2d at 1270-71. review.” Id. ensued, hit patron, a scuffle and Wade Holding “propensity” that a over the head the victim several times sufficiently specific to 404 is bottle. claimed he with a beer Wade judge to a Rule 403 alert a trial and feared for his acted in self defense of our balancing test flies in the face life, gun. believing that the victim had preservation. Defendant precedents on April was set for Trial objection at failed to raise Rule 403 2000, the court con- 2001. In October trial, court’s admission of inquired a status conference and vened to the level of evidence does not rise discovery parties’ progress. about the Pelican, error. See State office the court that his Davis informed (1993) (“Plain error everything to the defense had disclosed only exceptional circumstances exists discovery him the court’s order recognize would a failure to error Nevertheless, during cross- to disclose. miscarriage justice, result investigating officer examination grave glaring so where there is error two the defense learned very that it strikes at the heart of serious present at scene other officers were rights.”) constitutional prosecu- the incident. After the (internal quotation marks and citation rested, orally moved to tion the defense omitted). charges, citing the State’s dismiss the failure to disclose during discovery. two officers explain- the omission Davis defended

Case Details

Case Name: State v. Shippee

Court Name: Supreme Court of Vermont

Date Published: Nov 5, 2003

Citation: 839 A.2d 566

Docket Number: 02-081

Court Abbreviation: Vt.