State v. Cardinal

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-358


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Anthony D. Cardinal                          Unit 2, Chittenden Circuit

                                             September Term, 1990


Edward J. Cashman, J.

Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
   Attorney General, Montpelier, for plaintiff-appellee

Martin & Paolini, P.C., Barre, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.



     MORSE, J.    Defendant was convicted, after a jury trial, of sexually
assaulting his seventeen-year-old daughter.  13 V.S.A. { 3252(a)(1)(C).
Defendant appeals the trial court's denial of his pretrial motions in
limine, a motion for judgment of acquittal, and a motion to strike
testimony.  We affirm.
     The issues before the Court are:  (1) whether there was sufficient
evidence to support a finding that the victim was placed in imminent fear of
bodily harm; (2) whether evidence of defendant's uncharged bad behavior --
prior sexual abuse of the victim, violent and threatening behavior toward
the victim and her fiancé, and conspiring to kill them -- was admissible
under V.R.E. 404(b) and 403; and (3) whether a prosecution witness's
hearsay testimony regarding the victim's purported motive in prosecuting the
defendant, protection of her younger sister, was sufficiently prejudicial to
warrant reversal.
     Defendant was alleged to have had sexual intercourse with the victim at
about noon at a motel on August 22, 1986.  According to the victim,
defendant called her from a jobsite where he was a construction supervisor
and instructed her to leave her workplace and meet him at the motel.  She
arrived at the motel, rented a room, and shortly thereafter was joined by
defendant.  The victim, after resisting defendant's attempt to undress her,
pulled away and undressed herself.  Defendant had sexual relations with her
twice over a two-hour period and left.  When asked why she had left work to
meet defendant at the motel, the victim stated that she was scared and that
numerous death threats made by defendant over the years left her too
frightened to disobey him.
                                    I.
                           Fear of Imminent Harm
     At trial, the evidence showed that defendant had maintained an
incestuous relationship with his daughter for a period of four years,
beginning when the victim was thirteen years old and continuing until the
incident at the motel.  Initially, the sexual assaults took place in the
home, but when the victim was older, defendant began to arrange assignations
at motels.  According to the victim, the assaults took place approximately
once a week.
     On numerous occasions, defendant told the victim that failure to
consent to his advances would be severely punished.  He threatened to kill
her on several occasions, even showing her the gun he would use should she
fail to satisfy his demands or report his actions.  After the initial
assault in 1981, the victim reported the incident to her school principal
who contacted a social worker.  After the social worker contacted the
victim's parents to arrange an interview, defendant reiterated his intent to
kill her unless she recanted her story; she recanted.
     Under 13 V.S.A. { 3252(a)(1)(C)(amended 1989), sexual assault occurs
when a person compels another person to engage in a sexual act "[b]y placing
the other person in fear that any person will be harmed imminently."
Defendant argues that the fear-producing threats must be proximate to the
incident.  Nothing in 13 V.S.A. { 3252(a)(1)(C) requires that the threats be
made in a particular way or bear a particular temporal relation to the
sexual act.  The statute requires only that the victim fear imminent harm;
it is silent as to how and when that fear must be instilled.  Here, the
victim had been conditioned by repeated threats of harm to submit to
defendant over a four-year period.  See In re Nash, 149 Vt. 63, 65, 539 A.2d 989, 991 (1987)(victim's earlier knowledge that the defendant had a knife
was sufficient to supply evidence of fear of imminent harm).  On this
evidence, the jury was justified in finding that defendant compelled his
daughter to engage in a sexual act by putting her in fear of imminent harm,
and the trial court did not err in denying defendant's motion for judgment
of acquittal.
                                    II.
                             Uncharged Crimes
    Under V.R.E. 404(b), evidence of defendant's past crimes or wrongs is
not admissible to prove character and that defendant "acted in conformity
therewith."  However, such evidence may "be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident."  V.R.E. 404(b).  Once evidence
is shown to be relevant for any reason (other than character) -- whether
listed as an exception or not -- it still "may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice."
V.R.E. 403.  Admission or exclusion of evidence under this rule is a matter
of discretion.  State v. Parker, 149 Vt. 393, 400, 545 A.2d 512, 516 (1988).
In this case, the trial court determined that the evidence of alleged
uncharged acts was relevant under V.R.E. 404(b) and not unfairly prejudicial
under V.R.E. 403, and it gave limiting instructions in all instances.
                                    A.
                            Prior sexual abuse
     Defendant assaulted the victim once a week over a period of four years,
beginning when she was thirteen.  He threatened her with physical harm and
even death should she resist or report the incidents.  The introduction of
this evidence was not error.
     The evidence of a continuous practice of sexual abuse accompanied by
threats to the victim's life was highly probative of the victim's state of
mind -- that is, the existence of her fear of imminent harm, a key element
of the crime -- and indispensable in establishing defendant's modus
operandi of overcoming the victim's will by putting her in fear of harm.
                                    B.
                             Violent behavior
     After the August 22nd incident, the victim entered into a relationship
with John Tricou, whom she eventually married.  Upon learning that his
daughter had become engaged, defendant made threatening phone calls to Mr.
Tricou.  On August 31, when defendant encountered his daughter and Mr.
Tricou together in Colchester, he became violent and physically assaulted
his daughter by punching her in the face and attempting to pull her
engagement ring off her finger, pummeled her car with his fists, and asked
her if she wanted to die.  At that time, he also threatened Mr. Tricou,
saying, "stay away or you'll die," and attacked his car by smashing the
windshield with his fist and putting dents in the side panels.  Defendant
then followed his daughter from the scene and rammed his truck into the
back of her car.
     These actions were admissible as relevant to portray a man consumed
with jealousy and corroborate the daughter's allegations that her father
treated her as an object for his sexual gratification.  In other words, this
evidence was relevant to show that defendant had a proprietary sexual
interest in the victim, his actions being consistent with those of a jealous
lover.  See State v. Giroux, 151 Vt. 361, 366-67, 561 A.2d 403, 407
(1989)(holding that evidence of bad acts is admissible to show defendant's
state of mind).
                                    C.
                        "Contract" on victim's life
     Mr. Powers, one of defendant's coworkers, testified that defendant had
plotted with him to kill the victim and her fiancé, entomb them in a car,
and bury it in a large pit on the construction site where defendant and Mr.
Powers both worked.  Defendant's initiation of a plot to kill the victim and
her fiancé was admitted as relevant to defendant's guilty state of mind and
the existence of a continuing plan or scheme.  Whether defendant himself
ever took his own talk of murder seriously is not so much the issue as the
fact that he would "mouth off" about killing his daughter and her fiancé.
     Defendant had ample opportunity to attack Mr. Powers' credibility and
the plausibility of the purported assassination plan.  Whatever unfair
prejudice may have been engendered was substantially outweighed by its
probative worth.  It was not an abuse of discretion to admit it.
                                   III.
                       Protection of Younger Sister
     A witness was present while the victim's mother spoke to the victim
over the telephone.  During the phone conversation, the witness heard the
victim's mother ask the victim to drop the assault charge.  After the mother
hung up, the witness asked her what the victim's response had been.
According to the witness, the mother told her the victim had said that she
had to continue prosecuting the case to protect her younger sister.
Defendant moved to strike this testimony; the motion was denied.
     Defendant maintains he was unfairly prejudiced by the statement about
the victim's desire to protect her younger sister because it could have
prompted the jury to convict him, not for the crime charged, but to prevent
the commission of a future crime.  While this testimony may have had some
unfair prejudicial impact, it must be considered in the context of the
entire proceedings.  The statement was unsolicited and unanticipated.  The
statement was one sentence uttered at the end of over four days of
testimony.  The younger daughter, who was supposedly being protected, had
testified to the effect that she loved her father and had expressed no
concern for her safety.  The testimony was not mentioned in the State's
closing argument.  Granting the motion and giving a limiting instruction
would only have highlighted the evidence.  We conclude the court did not
abuse its discretion in denying defendant's motion to strike the testimony.
     Affirmed.


                                        FOR THE COURT:



                                        __________________________________
                                        Associate Justice