One case issued on Friday, October 18. An entry order issued on Tuesday, October 22.
We'll start with the opinion. Defendant was convicted of aggravated sexual assault and lewd and lascivious conduct with a child. His first trial ended with a hung jury on two counts and a resulting mistrial.
The charges stemmed from allegations that defendant had sexually abused J.P. throughout childhood. J.P. is defendant's ex-girlfriend's son. At the time J.P. made the allegations, he was eleven years old. Apparently, there were some behaviors, including watching pornography, that J.P. had engaged in even at that young age that defendant wanted to use to show motive to make false accusations. The trial court, however, found that evidence was not relevant and as such, excluded it under the Rape Shield Law. Defendant tried to get the trial court to let him refer to "concerning behavior" at trial to no avail.
At trial, in closing argument, the prosecution made statements that the jurors should consider J.P.'s fear, shame, embarrassment, feelings of conflictive loyalty "and how him coming forward and saying what happened is among the bravest and the most difficult things that he ever had to do in his young life."
On the evidentiary issues about J.P.'s "concerning behavior," the standard is abuse of discretion. SCOV concludes "that the trial court correctly excluded the proffered evidence as inadmissible and that defendant therefore has not made out a violation of the Confrontation or Due Process Clauses." That's really the long and short of it, despite an interesting discussion of whether the phrase "concerning behavior" is vague enough to get around the Rape Shield Law. Spoiler alert: it's not. SCOV concludes that the evidence was not logically relevant and, even if it was, its prejudicial effect would substantially outweigh any probative value. I think I may have phrased that backwards, but no matter . . . the result is the same.
A little tip for those of you out there facing a law school essay exam or the written portion of the bar exam. If you underline key words, it makes it at least look like you know what you're talking about. See what I did there?
Anyway, the evidentiary issue gets nowhere and SCOV moves on to the so-called "golden rule" issue. The "golden rule" prohibition is a rule that prohibits lawyers from asking jurors to place themselves in the shoes of someone like a victim or a party. Because the statements were not objected to below, we're in plain error territory. You might think of plain-error territory like a judicial desert wasteland replete with tumbleweeds, mirages, and the occasional oasis of a reversal. There's no oasis here. While SCOV does acknowledge that the statements might have been improper "they were not 'manifestly or egregiously improper.'" SCOV concludes that the statements didn't violate the golden rule and affirms defendant's convictions. State v. Parker, 2024 VT 64.
The entry order from Tuesday is, surprise, surprise, a bail decision. Defendant is charged with kidnapping, aggravated domestic assault, and a domestic assault hat trick (three counts). Because the kidnapping count is a potential life-in-prison charge, the prosecution moved to hold defendant without bail.
As these things do, this led to a weight-of-the-evidence hearing. The standard provides that the evidence of guilt is great if "substantial, admissible evidence, taken in the light most favorable to the State and excluding modifying evidence, can fairly and reasonably show defendant guilty beyond a reasonable doubt." Here, the trial court reasoned that the evidence of guilt was great.
While the events of the evening are awful, and I don't want to make light of them, the impetus of the dispute between defendant and complainant does have an element of humor. Defendant accused complainant of abusing his dog because she gave her dog more of the leftover bacon scraps after dinner. Why do I think that's funny? Because when my wife and I got our littermate puppies, "her" dog, Lucy, was bigger than "my" dog, Luna. So, I would give Luna a little extra food when I fed them. Eventually, Luna got bigger than Lucy. My wife likes to say "Tell them what you did!" when people comment on the pups' sizes. It's all in good fun.
Unfortunately, for the folks in this case, things got more heated throughout the evening and not in an all-in-good-fun way. Defendant followed complainant and cornered her in every room she retreated to. Complainant testified that defendant attacked her multiple times throughout the night, spit on her, pressed his knee into her throat, threatened to kill her, and poured bong water on her. Ultimately, complainant escaped into the yard and hid while defendant used a spotlight to look for her. "Complainant described that it was the scariest thing she had ever experienced, and she felt like she 'was being hunted.'"
There was evidence of defendant's criminal history introduced. There was also testimony from defendant's former partner and complainant's daughter about his violence and violent tendencies.
Based on all this, the trial court concluded that the evidence of guilt was great and ordered defendant held without bail.
On appeal, defendant attacks the trial court's conclusion that there was a prima facie case for kidnapping. SCOV runs through it, concluding that there's enough to meet each element of the charge. SCOV explains: "We conclude that, looking at the evidence in the light most favorable to the State, the State has presented a prima facie case for kidnapping that includes both the intent to restrain and the intent to restrain for the purpose of committing an assault or placing the complainant in fear of an assault."
SCOV also concludes that the trial court acted within its discretion in declining to release defendant under conditions. The trial court was unpersuaded the defendant would not be a danger to the community if released on bail. SCOV concludes that the trial court properly weighed the bail factors and that its decision not to release defendant was not an abuse of discretion. This one also gets affirmed. State v. Jacobs, 2024 VT 69 (mem.).
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