Partially Preserved Points

By Andy Delaney

Snow on a Saturday morning at the end of March is just wrong.

This week’s story is one of those stranger-than-fiction cases. Briefly, defendant married a woman named Lori and adopted her two daughters. In 2000, defendant got one of his adopted daughters pregnant and she gave birth to their child, K.O. In 2004, defendant divorced Lori and married his adopted daughter (presumably in a state that allows this—for the record, Vermont does not). But there are no charges because of that. He was accused on multiple counts of sexually assaulting K.O. beginning when she was 10 years old. He was also accused of multiple acts of lewd and lascivious with K.O. and A.S., another minor. The State also charged defendant with obstruction of justice based on defendant’s actions during the investigation.  

Defendant had a jury trial and was convicted of pretty much everything charged: sexual assault, lewd and lascivious conduct, and obstruction of justice. He was convicted of lesser-included domestic assault on an aggravated domestic assault charge.

As you’ve probably deduced, he appeals. He raises jury-bias issues, and challenges evidentiary rulings and jury instructions. First, though, there’s a pretty long footnote about defendant’s many “supplemental” filings with SCOV, which SCOV explains, more or less, it will not be digging into. So, while I’m sure some of those would have been interesting issues, we’re limited to the issues his lawyers raised. We’ll run through those now.  

First up, defendant argues that two jurors should have been removed for cause because of potential biases stemming from awareness of his family or case history. Both these jurors were ultimately struck with preemptory challenges. SCOV looks it over and finds no abuse of discretion. The bottom line is that nothing either juror said during jury selection raised a clear cause challenge and there’s a lot of deference to the trial court’s findings on potential juror bias during jury selection. Quoting another case, SCOV explains, “There are few aspects of a jury trial where we would be less inclined to disturb a trial judge’s exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empanelling of a jury.”

Part of the argument is that after both parties were out of challenges, it came up that two of the jurors were related. Though neither party made a cause challenge, defendant argues that he would’ve used a preemptory strike on one of the related jurors had he had one. This gets about as much traction as I’m going to have in my driveway today thanks to this ridiculous snow.   

So, then one juror sent a note saying that she thought she recognized A.S. as a former co-worker during the trial. Defendant argues that this should have resulted in the trial court making that juror an alternate. The trial court declined that invitation. SCOV says that the trial court followed the rule (subsection f if you follow the rabbit hole), that random selection is what the rule requires, and there’s no abuse of discretion.

Second, turning to the evidentiary rulings, we have a few things to cover. There was a recording of K.O.’s first report to the police that was admitted as probative of her mental state. Then there were handwritten “contracts” detailing restrictions on K.O.’s and A.S.’s sexual activity that were admitted. The prenup between defendant and wife was admitted to show his controlling behavior, and to rebut claims about wife’s credibility, while inflammatory portions were excluded. Some historical photos of K.O. and A.S., corresponding to their ages during alleged abuse, were allowed as relevant to charges involving entrustment. Finally, there was a diagram used during testimony to clarify anatomical terms related to statutory definitions of sexual acts. The trial court allowed it as a demonstrative after balancing probative value against potential prejudice. SCOV goes through each piece and ultimately reasons that the trial court did not abuse its discretion in admitting these items individually or cumulatively. Although SCOV notes that some objections were not preserved, it reasons even if they were, there was no abuse of discretion.

Third, and finally, on to the jury instructions. There are two points defendant raises. He alleges that the trial court improperly directed a verdict by stating K.O.’s age and relationship during certain instructions.  SCOV disagrees because these elements were essential and were presented as requiring proof beyond a reasonable doubt. No abuse of discretion. Defendant also argues that there were overbroad definitions of “sexual act” that confused the jury regarding the specific conduct supporting each charge. SCOV again disagrees, first noting that the argument was unpreserved and reasoning that each act was made sufficiently clear to ensure verdict unanimity.

And that brings us to the end of this particular story. This one is affirmed. Reading between the lines on footnote 1, however, I suspect we’ll see a post-conviction-relief proceeding in the near future. State v. Orost, 2025 VT 15.