Brushing Up

By Nicole Killoran

State v. Lawrence, 2013 VT 53.

Lay people who derive their understanding of the legal system from television dramas (for the record, I personally include Judge-Judy-style reality shows in that category) assume that litigation is somehow exciting, and full of passion and brilliant legal maneuvering.  The reality is, the vast majority of litigation is really quite boring, as today’s appeal of three obscure evidentiary issues demonstrates.

In 2009, defendant was charged with lewd and lascivious conduct with a child.  Defendant’s complainant, a 14-year-old girl, claimed that defendant grabbed her breast and buttocks, then told her he would shoot her if she told anyone.  Though this fact doesn’t appear in the SCOV’s decision, the impression is that this was something of a high-school romance between senior and freshman gone very, very wrong.

Before trial, the State gave notice that it intended to introduce evidence that defendant had brushed complainant’s bosom a year previous to this incident.  Defendant filed a motion to suppress this evidence.  The State moved to exclude evidence that complainant had previously lied about being pregnant.  The trial court denied defendant’s motion, and granted the State’s.  At trial, the jury found defendant guilty. 

Defendant filed a motion for a judgment of acquittal and a motion for a new trial.  The court denied both motions.  Defendant then discovered that complainant had posted to her MySpace page that she “wasn’t really sexually assaulted, I was just doing it for the attention.”  Defendant moved for a new trial, and was denied.  Defendant appealed.

On appeal, defendant raises three evidentiary issues.  The SCOV reviews all of them with an “abuse of discretion” standard—unless the trial court really screwed up, its findings regarding evidence will be upheld. 

First, defendant argues that the trial court erred in granting the State’s motion and barring evidence of complainant’s previous pregnancy lie because he was denied his Sixth Amendment right to confront a witness against him.  At trial, the trial court also denied defendant’s request to introduce this evidence after the State “opened the door” and asked complainant’s former friend, who testified against her, whether complainant had lied about being touched before.  The trial court determined that this evidence would be too prejudicial, not very relevant, and excluded it.

The SCOV notes that defendant wanted to introduce this evidence, which had little to do with anything material to the case and was not a topic on direct examination, to show complainant was a consummate liar.  But defendant introduced other evidence of complainant’s reputation for lying, and evidence of this particular incident would have been repetitive. 

The SCOV finds no error in the trial court suppressing this evidence—strike one.

Second, defendant argues that the trial court erred in denying his newly-discovered-evidence motion for a new trial after complainant supposedly posted to her MySpace page that she was just an attention-monger who cried wolf.  But apparently complainant’s “friend,” who testified against her at trial about complainant’s pants being on fire, had access to complainant’s MySpace login and password.  As you might imagine, complainant claimed that it was not her, but her friend, who had made the post. 

MySpace also purges its records of IP addresses from which posts are made every six months, so by the time the motion for a new trial came along it was impossible to say who had made the post.  On this basis, the trial court concluded that this “new evidence” did not show that complainant’s previous testimony was false, and that it would merely be admitted to impeach complainant, and denied defendant’s second motion for a new trial.

The SCOV agrees, analyzing the issue under two standards.  First, under State v. Robillard, defendant must show that the original testimony was false, that the jury would likely have reached a different conclusion, and that the new evidence was a surprise or the old evidence was discovered to be false after the trial.   Under State v. Miller, the new evidence must be material, likely to change the result, discovered after trial, impossible to have been discovered earlier, and be central to an element or charge and not “merely cumulative or impeaching.” 

Given the questions regarding authorship of the post, and the State’s other substantial evidence of complainant’s veracity, the SCOV concludes that, regardless of which standard you apply, the new evidence did not undermine complainant’s previous testimony, and would not have changed the result on retrial.  The SCOV also agrees that this would only be impeaching evidence if it were admitted. 

Sorry defendant—strike two.

Finally, defendant argues that the trial court should not have allowed the State to introduce evidence that he brushed up against complainant’s bosom a year previous to the incident.  The issue with this evidence, as evidentiary geeks know, is that a “prior bad act” cannot be admitted to show a propensity to act badly, with very few exceptions.  Those exceptions include allowing evidence of a prior bad act to show “lack of mistake or accident, intent, common plan, [and] context.”  The trial court allowed this prior bad act in, citing these exceptions.

Though defendant seems by now ready to be sent packing, the SCOV actually agrees with him on this point and scolds the trial court for allowing “the exception to swallow the rule.”  There was nothing about this set of facts that would require admitting this prior bad act to give the jury context for the relationship.  Complainant also as much as admitted to the jury that defendant’s brushing was possibly unintentional.  Defendant never claimed mistake or accident, thus it couldn’t have been admitted to show the lack thereof.  Trial court, you screwed up, says the SCOV.

But, sadly for defendant, the SCOV affirms the trial court anyways—this error was harmless.  The State’s evidence was otherwise very strong, and the jury would almost certainly have convicted defendant even if this incident was excluded.  “[T]he offending testimony is weak,” concludes the SCOV, and there was “little danger of inflaming the jury.” 

Strike three for defendant—he’s out an acquittal.

Oh well.  Defendant almost got his retrial.  Let that be a lesson to all who would brush bosoms, intentionally or otherwise.  Think twice, it might save you a trial and conviction.