No Abuse of Discretion

Iguana tell you a story . . .

State v. Patten, 2018 VT 98

By Elizabeth Kruska 

Here are the facts as I understand them. Defendant and his girlfriend moved to Vermont with Complainant and her boyfriend in 2013. So – two couples. I’m not sure how they’re connected. Maybe they’re friends, maybe someone’s related to another person, I’m not sure. Eventually they end up renting a house that has separate apartments but has a shared laundry area in the middle. Sort of a Jack and Jill of laundry machines, I suppose.

It would appear that at some point Defendant and his girlfriend broke up, and the girlfriend moved out. It also appears that in the months leading up to the breakup there were some isolated flirting-type incidents between Complainant and Defendant. There was also an incident where Defendant walked into a room where Complainant was sleeping and also masturbating. Several months later after the masturbation incident, Defendant and Complainant were each home alone in their respective apartments. Defendant is said to have gone through the laundry area into Complainant’s apartment, declared that he is a sex offender, and sexually assaulted her.

The complainant reported this to her sister a few months later, and then went to the police. He was then charged with sexual assault. He went to trial, and was convicted. He appealed, and SCOV affirmed.

His bases for appeal are on two evidentiary issues: (1) the admission of his statement that he is a sex offender; and (2) exclusion of the masturbation incident.

From the outset, SCOV reminds us that evidentiary issues are reviewed for abuse of discretion. An appellant has to show that the trial court either totally withheld its discretion or that the grounds it used for its decision were untenable or unreasonable. If SCOV reviews factual findings, that review is for clear error. So, yeah, a big bar to cross.

Let’s start with the sex offender statement. This statement, without more context, feels very odd. Ever see the Garfield Minus Garfield cartoons? This doesn’t quite feel that extreme, but it does feel like I wish there was a little more context. And maybe a big orange cat, but that’s because I generally think cats improve situations.

Knowing this was part of the case, Defendant filed a motion to exclude the sex offender statement. Here’s the thing: in order to get to be a sex offender someone has to be convicted of a sex offense. The problem is that if the jury hears Defendant declare himself a sex offender, there’s an assumption to be made that he has a prior sex conviction and that he’ll act in conformity with his sex offender history. That’s the argument Defendant made and that’s the argument I’d make too.

But there’s a flip side to that argument, which the State made, and which the trial court found compelling. And that’s to say that you can use that sex offender statement for other things, like to show his intent in intimidating Complainant before he assaulted her. The trial court heard evidence about this and decided that the statement was prejudicial, but that its probative value outweighed any prejudice. SCOV finds that the trial court appropriately took evidence, weighed it, and came up with a decision. Remember in math class as a kid when the teacher always said to, “show your work?” Evidentiary decisions with findings are the trial court judge equivalent of “showing your work.” And as long as the trial court could show that its findings were based on evidence taken and the conclusions drawn from it were not unreasonable, the trial judge’s decision is not an abuse of discretion.

So then, there’s another fun argument to be made here, which I like very much but which was also apparently not persuasive to the trial court. In trials, the state can’t use prior convictions against a defendant, unless the prior conviction was either (a) a case involving a crime of untruthfulness or (b) a felony less than 15 years old. The reason is that if a jury hears Defendant has convictions for crimes X, Y, and Z, that has the strong likelihood of tainting the jurors’ minds about Defendant, generally. If the jury doesn’t know about someone’s past, they’re more apt to listen to the current facts at hand and make the decision based solely on those facts. If they hear about an old crime they might think, gee, this guy was convicted for something before so he must be a bad dude so he must be guilty this time. And he might or he might not be, but the decision’s got to be based only on the facts of the instant case.

The trial court didn’t give this a lot of oxygen, because the state never offered evidence of an actual prior conviction – just of the defendant’s statement. Since the actual conviction was never introduced, there was no need to analyze whether or not the relevant rule of evidence on prior convictions even applies.

In any case, the court has to balance the probative value of the evidence against the prejudicial nature. This is where the court has to show its work and show how it got to the point of deciding a particular piece of evidence was admissible. Long story short, the trial court did that – and it appears put quite a bit of work into its balancing, so SCOV affirms. SCOV also points out that even though one judge might rule differently than another, it (SCOV) isn’t going to substitute its judgment for the trial court that actually heard the evidence and did the analysis.

Also, during the trial a juror sent a question to the court, wondering, “does Defendant have a sex offender record in any state?” Defendant argued that this suggested the jurors were considering that he likely has prior convictions. The record shows that the attorneys and the judge conferenced on this matter and answered by telling the jury not to “speculate as to what the answer may be.” SCOV says this instruction is A-OK and it sufficiently took care of the issue.

There was also a prior incident that Defendant wanted admitted, presumably to show that his sexual relationship with Complainant was consensual. He wanted to get into evidence a time about four or five months prior to the assaultive incident where Defendant entered a room where Complainant slept, and was masturbating. Then he did the same in the same room with her implicit consent. Her version of the story was that this happened but that she covered herself when she saw him in the room. This appears to have happened once.

We have a a Rape Shield Law, which is meant to prevent introduction of a sexual assault complainant’s sexual history except in certain circumstances. Defendant filed a motion to admit the masturbation incident, arguing it showed an ongoing, consensual sexual relationship between Defendant and Complainant. Although this happened only one time, Defendant tried to argue that it was part of a larger pattern of flirtatious behavior, involving kissing, “playing footsies” while taking some goats on a walk, a kiss, and a couple other non-sexual flirtations.

The trial court said no, this doesn’t get admitted. First of all, the alleged masturbation incident – even if Defendant’s version was completely factually accurate – was a one-time incident that happened several months before the assault. Furthermore, to be admissible, the evidence would have to bear on Complainant’s credibility or be material to a fact at issue, and that the probative value would have to outweigh its private character. The court says no – it was too attenuated in time and was of minimal probative value.

So, SCOV says the trial court got this one right, and affirms.