State v. Daniel L. Larkin

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 by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2018 VT 16

No. 2016-315

State of Vermont Supreme Court

On Appeal from
v. Superior Court, Windham Unit,
Criminal Division

Daniel L. Larkin October Term, 2017

Katherine A. Hayes, J.

David Tartter, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Rebecca Turner and Amanda Isaacs, Appellate
Defenders, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. SKOGLUND, J. Defendant Daniel Larkin appeals his conviction of second-

degree aggravated domestic assault. Defendant argues that the trial court’s exclusion of evidence

of complainant’s previous conviction for providing false information to a police officer (FIPO),

offered by defendant to impeach complainant, deprived defendant of a fair trial. We agree that the

trial court erred in excluding the evidence and that the error was not harmless. Accordingly, we

reverse.

¶ 2. On December 9, 2015, defendant was charged with first-degree aggravated

domestic assault under 13 V.S.A. § 1043(a)(1) and second-degree aggravated domestic assault

under 13 V.S.A. § 1044(a)(2)(B). Both charges arose from a series of events on the night of
December 8, 2015 involving defendant and complainant. The first-degree aggravated domestic

assault charge was based on an allegation that defendant had strangled complainant while they

were in a motel room. The second-degree aggravated domestic assault charge was based on an

allegation that, later the same evening, defendant recklessly inflicted injuries on complainant when

defendant ordered her out of his car and left her on the side of the road.

¶ 3. Prior to trial, the State filed a motion in limine to preclude defendant from

questioning complainant about (1) her prior FIPO conviction and “other fighting behavior,” (2) her

pending probation violation charge, (3) her prior drug history, and (4) the fact that she was expelled

from a drug-rehabilitation center two days prior to the alleged assault. On April 21, 2016, a hearing

was held on the motion and the trial court issued a written entry order. The trial court determined

that evidence of complainant’s history of substance abuse and mental health treatment and her

probation status and violations was irrelevant and would be excluded. However, the trial court

determined that evidence of complainant’s FIPO conviction was admissible for the purpose of

impeachment under Rule 609 of the Vermont Rules of Evidence and that evidence of

complainant’s conviction of simple assault might be admissible if defendant presented evidence

sufficient to raise a claim of self-defense.

¶ 4. A jury trial was held on April 26 and 27, 2016. On the first morning of trial, before

opening arguments, it became clear that complainant would not be present to testify. Defendant

argued that the trial court should exclude complainant’s 911 call and statements to responding

police officers on the grounds that they were hearsay and violated his right to confrontation. See

generally Crawford v. Washington, 541 U.S. 36 (2004); State v. Shea, 2008 VT 114, 184 Vt. 453,

965 A.2d 504. The trial court rejected both of these arguments and admitted the statements because

they were given in response to an ongoing emergency and were excited utterances.

¶ 5. The following evidence was introduced through the State’s witnesses’ testimony

and complainant’s 911 call. On the evening of December 8, 2015, complainant attempted to rent

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a motel room but was denied because her name was on the “do not rent” list. Complainant, upset

with the decision, left the motel. About fifteen minutes later, defendant entered the motel and

rented a room for the night. Later that night, the clerk received a noise complaint from a room

neighboring defendant’s room complaining of “horrible yelling and banging.” The clerk testified

that she called defendant’s room and spoke to a female, who sounded like complainant. The female

apologized, explaining that she had dropped her suitcase.

¶ 6. Later, the clerk answered a phone call from defendant’s room. She could not get

anyone’s attention but could hear the same female voice in the background crying and yelling.

The clerk hung up and called back, but there was no answer. The clerk then walked outside and

saw a crying female walking across the parking lot. The clerk testified that the female’s boots

made a similar clicking sound to the boots complainant was wearing when she attempted to rent a

room earlier in the evening.

¶ 7. Shortly after midnight, the Vermont State Police received a 911 call from

complainant. The dispatcher who received the call testified that, when she first picked up the

phone, she heard “[a] lot of mumbling and moaning and [a] very frustrated voice.” An audio

recording of the 911 call was played for the jury. During the 911 call, complainant made the

following statements: “He hurt me so bad”; “He kicked me in the stomach it’s really hard for me

to breathe”; “Why did he have to punch me in the face”; “He pulled my hair out”; and “I’m in

pain, I’m in a lot of pain.” Complainant also identified defendant, by name, as the “he” to whom

she was referring. Brattleboro Police Department officers were dispatched and found complainant

crying by the side of the road about one mile from the motel. The responding officers testified

that complainant’s hair was disheveled, both of her eyes were black and blue, there was a bump

on her forehead, and she had no shoes on.

¶ 8. The ambulance personnel who responded to the scene testified that complainant

was in the same physical state as described by the officers’ testimony. Further, they testified that

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complainant said her boyfriend strangled her and hit her at a motel, then dragged her from a car,

punching and kicking her. A treating nurse at the hospital where complainant was brought testified

to complainant’s same physical appearance and that complainant said her boyfriend had beaten

her up and kicked her out of a car.

¶ 9. After complainant was transferred to a hospital, police officers went to the motel to

locate defendant. Defendant was not there, but the room was in disarray. The officers testified

that clothing and pills were scattered on the floor and that the bathroom door was not on its hinges

and was missing. Complainant later told police that defendant had broken the door off its hinges

to throw at her.

¶ 10. Around one in the morning on December 9, 2015, defendant was stopped for

speeding. He told the officer that he was returning home after visiting his girlfriend. He was

processed for driving while intoxicated. The officer testified that defendant did not complain of

any injuries, though the officer noted that his left hand seemed swollen. Defendant, while

testifying on his own behalf, explained that he had slipped and fallen the previous winter and as a

result of his injuries, he had undergone surgery to place a plate in his hand, which frequently caused

him discomfort. Defendant was arraigned later during the morning of December 9.

¶ 11. At the close of the State’s case, defendant moved for judgment of acquittal, which

was denied. Defendant then sought to admit evidence of complainant’s FIPO conviction, arguing

that it was admissible “under Rule 609 through standard impeachment.” Defendant noted that

complainant had effectively testified through the 911 call and other witnesses’ testimony and that

the State’s “whole case is about what [complainant] said happened, and then there’s circumstantial

evidence that’s offered to support it.” Defendant further argued that the introduction of the 911

call was prejudicial to defendant because there was no way to test “the veracity of her purported

statements” and “absent being able to impeach [complainant] in some appreciable way,

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[defendant] has no real defense other than to say that’s not true, and then the jury doesn’t have a

complete picture.”

¶ 12. The State argued that it was inappropriate for complainant’s prior conviction to

come in without her being present to testify at trial. The trial court agreed with the State, and held

that if complainant had testified at trial, “either side [could] impeach her with evidence of her prior

conviction for false information to a police officer . . . but if she does not testify, Rule 609 does

not apply and her prior convictions are not relevant.”

¶ 13. Defendant then testified on his own behalf. He testified that he and complainant

checked into the motel and got into an argument. As the argument escalated, complainant got

physically aggressive and started hitting defendant, so he left the room and slept in his car in the

motel parking lot. Defendant testified that he woke up to complainant entering his car and

demanding that he drive her to get cigarettes, noting that she was under the influence of drugs that

made her “more agitated and more irritable.” He asked her to leave, and she refused. As they

drove to the store, the argument escalated, and complainant started hitting defendant again. He

pulled the car over and asked complainant to get out. When she refused, defendant got out and

pulled her out and away from the car. Complainant started to kick the car, at which point defendant

admitted to pushing her “far enough so [he] could get away without running her over.” He

acknowledged that she fell over when he pushed her.

¶ 14. The jury acquitted defendant of first-degree aggravated domestic assault relating to

the incident in the motel room but returned a guilty verdict for second-degree aggravated domestic

assault for actions taking place on the side of the road.

¶ 15. The central issues in this appeal are (1) whether the trial court erred by admitting

complainant’s 911 call and statements to other testifying witnesses while excluding the

impeaching evidence of complainant’s FIPO conviction, and (2) if there was an error, whether that

error was harmless.

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 ¶ 16. Defendant argues to this Court that, under Rules 609 and 806 of the Vermont Rules

of Evidence, evidence of complainant’s FIPO conviction should have been admitted to impeach

complainant as a hearsay declarant. Defendant argues that the error was not harmless because the

State’s entire case rested on the credibility of complainant’s hearsay statements. The State argues

that defendant was required to cite the specific rule that was the basis for admission and because

he failed to cite Rule 806 instead of Rule 609, defendant did not properly preserve this issue. Thus,

the State argues we must review only for plain error. See V.R.Cr.P. 52(b); State v. Bangoura, 2017

VT 53, ¶ 6, __ Vt. __, 171 A.3d 50 (“Because defendant did not preserve either of his objections

in the trial court, we review only for plain error.”). We agree with defendant.

¶ 17. It is well established that “[t]o properly preserve an issue for appeal a party must

present the issue with specificity and clarity in a manner which gives the trial court a fair

opportunity to rule on it.” State v. Hinchliffe, 2009 VT 111, ¶ 32, 186 Vt. 487, 987 A.2d 988

(quoting State v. Ben-Mont Corp., 163 Vt. 53, 61, 652 A.2d 1004, 1009 (1994)). Further, “where

a litigant’s argument is clear enough for the trial court to evaluate it and for an opponent to respond

to it, the claim is adequately preserved for appeal.” State v. Mumley, 2009 VT 48, ¶ 18, 186 Vt.

52, 978 A.2d 6.

¶ 18. Rule 806 governs attacking and supporting the credibility of a hearsay declarant.

The rule reads: “When a hearsay statement . . . has been admitted in evidence, the credibility of

the declarant may be attacked . . . by any evidence which would be admissible for those purposes

if declarant had testified as a witness.” V.R.E. 806. Rule 609 of the Vermont Rules of Evidence

governs the impeachment of witnesses by evidence of criminal convictions. The rule reads: “For

the purpose of attacking the credibility of a witness, evidence that the witness has been convicted

of a crime shall be admitted . . . by extrinsic evidence, but only if the crime . . . [i]nvolved

untruthfulness or falsification . . . .” V.R.E. 609(a)(1). Vermont’s Rule 806 is virtually identical

to Federal Rule 806. See Reporter’s Notes, V.R.E. 806 (noting a “minor verbal change to make

6
clear that the second and third sentences of the rule embrace all statements referred to in the first

sentence”). As the advisory committee notes to Federal Rule 806 explain, “[t]he declarant of a

hearsay statement which is admitted in evidence is in effect a witness. His credibility should in

fairness be subject to impeachment and support as though he had in fact testified. See Rules 608

and 609.”

¶ 19. Rule 806 is a rule of interpretation. It merely makes clear that Rule 609’s method

of impeachment through prior convictions is applicable to hearsay declarants. Rule 609 provides

the operative requirements and limitations to the process of impeaching an individual using past

criminal convictions. Because Rule 609 provides these requirements, it cannot be said that Rule

806 is the basis for admission of this type of impeaching evidence against a hearsay declarant.

Rule 609 is.

¶ 20. Based on this understanding, defendant properly referred to the rule that was the

basis for admission at various points before and during trial, and thus preserved this issue for

appeal. Defendant cited Rule 609 during the hearing on the motion in limine. The trial court

properly determined in its pretrial ruling that complainant’s FIPO conviction was relevant and

admissible for impeachment under Rule 609. Defendant again cited Rule 609 when he attempted

to admit evidence of complainant’s conviction at trial after complainant’s hearsay statements were

admitted. Both the trial court and the State were presented with defendant’s argument—that

complainant’s hearsay statements were admitted into evidence and thus were subject to

impeachment under the rules—with sufficient clarity and specificity to address and respond to it.

While defendant could have further supported or clarified his argument by citing Rule 806, not

specifically citing it was not fatal to his preservation of the issue.

¶ 21. “Our standard of review on evidentiary rulings is deferential.” State v. Herring,

2010 VT 106, ¶ 4, 189 Vt. 211, 19 A.3d 81. Therefore, it is ordinarily defendant’s burden to prove

that the trial court erred in excluding evidence. Id. However, here, the State concedes that the

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trial court erred when it failed to admit the impeaching evidence of complainant’s FIPO

conviction.* Therefore, because the exclusion of complainant’s FIPO conviction was in error and

the issue was preserved, we review under the harmless error standard.

¶ 22. Under Rule 52(a) of the Vermont Rules of Criminal Procedure “[a]ny error, defect,

irregularity or variance which does not affect substantial rights shall be disregarded.” The State

bears the burden of proving that an error meets this standard and thus is harmless. State v. Scales,

2017 VT 6, ¶ 20, __Vt. __, 164 A.3d 652. For an error to be harmless, this Court “must find

beyond a reasonable doubt that the jury would have returned a guilty verdict regardless of the

error.” Id. (quoting State v. Oscarson, 2004 VT 4, ¶ 30, 176 Vt. 176, 845 A.2d 337)); see also

State v. Lipka, 174 Vt. 377, 384, 817 A.2d 27, 33 (2002) (“We can uphold a criminal conviction,

despite a confrontation clause error, if we find that the error was harmless beyond a reasonable

doubt.”).

¶ 23. In reviewing defendant’s claim that the trial court’s exclusion of evidence affected

the verdict, this Court does “not play the role of factfinder; rather, our focus is on the jury and

whether it would have returned a guilty verdict even if the excluded testimony had been admitted.”

State v. Haskins, 2016 VT 79, ¶ 17, 202 Vt. 461, 150 A.3d 202. To do this, we must consider and

balance two components: “(1) the strength of the case against defendant without the excluded

evidence, and (2) the strength of the excluded evidence.” Id.

¶ 24. This Court’s reasoning in one of our recent cases, Haskins, is applicable here. In

Haskins, the defendant was charged with attempted murder. The defendant’s theory at trial was

that he was framed by others who were present when the stabbing occurred to protect the true

perpetrator. On appeal, the defendant argued that the trial court erroneously excluded testimony

that he alleged was exculpatory. This Court agreed that the trial court erred in excluding the

*
The State did not argue that there was no error. Instead, it argued that the error did not
rise to the standard necessary for reversal under a plain error analysis.
8
proffered testimony, but we held that the error was harmless after weighing the strength of the

State’s case and strength of the excluded evidence. Id. ¶¶ 15, 32. The Court conducted a thorough

analysis of the two factors and discussed where findings of harmless error would and would not

be appropriate. Id. ¶¶ 18-31. The same reasoning applied to this case leads us to conclude that the

trial court’s error was not harmless.

¶ 25. First, the Haskins court found that the State’s case was very strong because,

throughout trial, the State introduced extensive evidence identifying the defendant as the individual

who stabbed the victim. The State presented three eyewitnesses to the stabbing, each accurately

identifying what the defendant looked like and what he was wearing on the night at issue. Further,

the State introduced evidence that the defendant carried a knife with him on a daily basis and that

he had the knife on the night of the stabbing. The State also introduced significant evidence of the

defendant implicating himself as the stabber. With all of this evidence, this Court found that the

State’s case against the defendant was very strong. Id. ¶¶ 18-24.

¶ 26. In contrast, here we find that the State’s case was comparatively weak. The State’s

witnesses testified that complainant had injuries that appeared to be consistent with her version of

the story, as elicited through her 911 call and her statements to first responders. Defendant

admitted being with complainant on the night of the alleged assault and pushing her out of his car,

but denied that he struck her in the motel or on the side of the road. After all the evidence was

presented by both sides, the case essentially came down to complainant’s word against

defendant’s—whose version of events was the truth about what happened on the side of the road

that night. The State lacked the strong direct evidence and support that was present and led to the

harmless error finding in the Haskins case.

¶ 27. Second, in examining the strength of the excluded evidence, we consider “the

extent to which the offending evidence was inculpatory, whether it was cumulative or duplicative

of other evidence, and how prominent it was at trial.” Haskins, 2016 VT 79, ¶ 28 (quotation

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omitted). This Court has emphasized in the past that “where, as here, the outcome hinges largely

on the credibility of the witnesses, evidence concerning credibility is particularly important.” State

v. Covell, 146 Vt. 338, 341, 503 A.2d 542, 545 (1985). For this reason, a “court must be

particularly cautious in exercising its discretion to preclude impeachment evidence offered by a

defendant.” Id., 503 A.2d at 544.

¶ 28. Applying this analysis, this Court found that the excluded evidence was relatively

insignificant. 2016 VT 79, ¶¶ 28-32. There, the defendant proffered testimony of a police officer,

which the defendant argued bolstered his theory of framing. We determined that the evidence

proffered through the police officer’s testimony was undisputed and thus duplicative. Id. ¶ 29.

Second, we held that “[t]he excluded testimony did not go to the ultimate issue of defendant’s guilt

or innocence, but rather was intended to strike at the credibility of those group members who

testified against [the] defendant, thereby contributing to [the] defendant’s theory that he had been

framed.” Id. ¶ 30. However, we went on to emphasize that the “case was not a swearing contest

between a complainant and a defendant.” Id.; see, e.g., State v. Groce, 2014 VT 122, ¶ 21, 198

Vt. 74, 111 A.3d 1273 (deciding whether trial court erred by introducing evidence and noting that

“[a]lthough other witnesses testified as to events immediately before and after the incident, only

defendant and complainant testified as to what happened during the alleged sexual encounter”);

Herring, 2010 VT 106, ¶ 13 (refusing to find erroneous admission of evidence harmless and stating

that right to impeach complainant’s credibility “is most important when the prosecution’s

case . . . essentially depends upon the credibility of a single witness”); State v. Brillon, 2010 VT

25, ¶ 21, 187 Vt. 444, 995 A.2d 557 (refusing to find erroneous admission of evidence harmless

because “[a]lthough other witnesses testified to events that occurred before and after the actual

altercation, only defendant and [complainant] testified as to what occurred [during the incident]”

and “[t]hus, the case ultimately came down to a credibility determination between defendant and

[complainant]”); State v. Hazelton, 2006 VT 121, ¶¶ 20-21, 181 Vt. 118, 915 A.2d 224 (holding

10
that trial court committed reversible error by allowing two witnesses to recite complainant’s

testimony to bolster her credibility when case turned on competing stories by complainant and

defendant). Unlike previous cases in which we found reversible error, in Haskins, instead, “there

was substantial additional inculpatory evidence from multiple witnesses pointing to defendant, and

the excluded testimony directly attacked the credibility of a nonwitness, not a complainant.”

Haskins, 2016 VT 79, ¶ 30. Thus, this Court concluded that “it is difficult to say that the excluded

testimony had any real significance” because there was not such a swearing contest. Id.

¶ 29. Here, the jury was faced with the competing narratives of complainant and

defendant. The outcome of the case hinged on the credibility of these two individuals, and thus

we must take extra caution when analyzing the effect of the exclusion of defendant’s impeachment

evidence—complainant’s FIPO conviction. In August 2015, four months before this alleged

assault, complainant was convicted of giving false information to a police officer. While the State

here has presented corroborating evidence to support complainant’s testimony, the strength of the

excluded evidence cannot be denied. The evidence of complainant’s very recent FIPO conviction

had the potential to seriously undermine complainant’s credibility in a case where she is accusing

someone of an otherwise unwitnessed domestic assault. The jury could reasonably find that,

because complainant had lied to police previously, her statements to testifying witnesses were less

credible than they would have been otherwise.

¶ 30. The dissent argues that “[t]he State provided overwhelming direct evidence of

complainant’s physical injuries and very strong circumstantial evidence that defendant caused the

injuries, all of which corroborated complainant’s statements.” Post, ¶ 3. However, this ignores

two necessary observations. First, the jury acquitted defendant of the first-degree domestic assault

charge, which was based on the allegation that defendant had strangled complainant while they

were in the motel room. From this, we can infer that the jury did not find the circumstantial

evidence “very strong” at all—they were so unsure of its strength that they could not unanimously

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agree to convict defendant under that charge. Second, at issue in this appeal is defendant’s second-

degree aggravated domestic assault conviction, which was based on the allegation that defendant

recklessly inflicted injuries on complainant when defendant ordered her out of his car and left her

on the side of the road. The dissent correctly points out that the State presented direct evidence of

complainant’s physical injuries. However, the question of whether or not complainant had

suffered injuries was secondary to the question of who caused those injuries, for which the State

presented no direct evidence and some circumstantial evidence that was weak at best.

¶ 31. In sum, when comparing the State’s case, which consisted largely of circumstantial

evidence, to the overwhelming relevance and strength of the excluded evidence, we cannot say

beyond a reasonable doubt that the jury would have returned a guilty verdict if complainant’s FIPO

conviction was admitted. Thus, we hold that the exclusion of complainant’s FIPO conviction was

not harmless error.

¶ 32. Defendant’s conviction must be reversed, and a new trial is required. Because we

reverse based on defendant’s first claim on appeal, we do not reach defendant’s second argument—

that excluding admissible impeachment evidence violated defendant’s rights to due process, cross-

examination, and to present a defense guaranteed by the United States and Vermont

Constitutions—and third argument—that the court erroneously entered a written judgment and

sentence convicting defendant of an improper charge.

Reversed and remanded.

FOR THE COURT:

Associate Justice

¶ 33. REIBER, C.J., dissenting. I agree with the majority that the trial court erred in

excluding the complainant’s impeachment evidence. I also agree with the harmless-error analysis

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the majority follows, in which the Court considers (1) the strength of the State’s case, including

the strength of the defense, and (2) the strength of the erroneously excluded evidence. But I do

not agree that the State’s case here was weak or that the excluded evidence was highly significant.

I would find harmless error. Therefore, I respectfully dissent.

¶ 34. In general, this Court has considered the State’s case weak when the evidence

consists primarily of the complainant’s and defendant’s testimony, with little or no corroborating

evidence. State v. Herring, 2010 VT 106, ¶ 10, 189 Vt. 211, 19 A.3d 81 (finding error not harmless

when the corroborating evidence was “all contested and not objectively inviolable,” and there was

“no independently incriminating proof beyond a reasonable doubt”). In those circumstances,

which we have characterized as a “swearing contest” between the complainant and the defendant,

we have frequently found errors not harmless. See id. For example, in State v. Groce, there was

no physical evidence to corroborate the complainant’s testimony, and the witness testimony was

weak. 2014 VT 122, ¶¶ 20-21, 198 Vt. 75, 111 A.3d 1273. The Court stated:

Although other witnesses testified as to events immediately before
and after the incident, only defendant and complainant testified as
to what happened during the alleged sexual encounter. . . . Without
more, this evidence is not strong enough to conclude that the jury
would have been convicted beyond a reasonable doubt without the
erroneously admitted hearsay evidence.

Id. ¶ 21; see also State v. Lipka, 174 Vt. 377, 385, 817 A.2d 27, 34 (2002) (describing case as “a

classic swearing contest” and finding error not harmless where there was no evidence to

corroborate complainant’s testimony). In contrast, in State v. Oscarson, this Court concluded the

error was harmless with regard to the second conviction in the case because the complainant’s

testimony was “strongly corroborat[ed]” by other evidence, and the defendant’s testimony was

wholly uncorroborated. 2004 VT 4, ¶¶ 54, 57, 61, 176 Vt. 176, 845 A.2d 337; see also State v.

Haskins, 2016 VT 79, ¶ 30, 202 Vt. 461, 150 A.3d 202 (finding case “not a swearing contest

between a complainant and a defendant” because “there was substantial additional inculpatory

13
evidence from multiple witnesses pointing to defendant, and the excluded testimony directly

attacked the credibility of a nonwitness, not a complainant”).

¶ 35. The majority categorizes this case as a swearing contest, saying that “the jury was

faced with the competing narratives of complainant and defendant,” so that the “outcome . . .

hinged on the credibility of these two individuals.” Ante, ¶ 29. This is not accurate. Complainant

and defendant certainly presented conflicting accounts, but complainants and defendants generally

do. What matters is whether there is “more” than conflicting accounts, and here there was

substantially more evidence. Cf. Groce, 2014 VT 122, ¶¶ 20-21 (saying evidence consisting of

witness testimony regarding the time frame of the alleged incident, complainant and defendant

testimony about the alleged sexual assault, and no physical evidence, was insufficient “without

more,” so error was not harmless). The State provided overwhelming direct evidence of

complainant’s physical injuries and very strong circumstantial evidence that defendant caused the

injuries, all of which corroborated complainant’s statements. In addition, defendant’s testimony

was entirely uncorroborated. In these respects, this case is closely analogous to Haskins. 2016

VT 79, ¶¶ 18, 25, 32. Just as in Haskins, this case is not a “swearing contest.” Id. ¶ 30.

¶ 36. Further, looking only at the evidence apart from complainant’s statements, the

State’s case was strong circumstantially. The clerk at the Motel 6 on Putney Road in Battleboro

testified that complainant was uninjured earlier on the evening in question; there was yelling and

banging in the motel room that defendant rented, and someone who sounded like complainant

seemed to be present and sobbing; and after the disturbances in defendant’s room, a sobbing

woman walked across the parking lot away from the direction of defendant’s room, her shoes

making the same distinctive sound as complainant’s. Police officers and medical responders

testified that complainant made an emergency phone call soon after midnight, and they found her

crying by the side of Putney Road, wearing no shoes. They also testified, together with an

emergency room nurse, that she had bruising around her neck, which was covered with make-up,

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and bruising and swelling around both eyes, which was fresh. The evidence included pictures of

these injuries. After speaking with complainant, the police officers investigated the motel room;

they found clothes and pills scattered around the floor, and the bathroom door was missing. A

state trooper testified that defendant was pulled over for speeding around one o’clock in the

morning approximately seventy-seven miles north of Battleboro, and he was processed for driving

while intoxicated.

¶ 37. Just as in Haskins, this evidence created a strong case for the State. See 2016 VT

79, ¶ 18 (finding State’s case strong despite “conflicting testimony” because “the State presented

substantial evidence identifying defendant as the person who stabbed the victim”). There was

overwhelming evidence that complainant was injured and that the injuries occurred around the

same time that she was with defendant, and there was strong circumstantial evidence that defendant

caused the injuries.

¶ 38. Moreover, also as in Haskins, the defense was weak. See id. ¶ 25 (stating that

“there was very little evidence to bolster defendant’s theory”). Defendant’s testimony was

attenuated. He testified that he and complainant argued in the motel room, she became violent

toward him, and he left to sleep in his car. Around midnight, she woke him so he could drive her

to the store, and on the way, she became violent toward him again. When she got out of his car,

she began to kick it hard enough to damage it. He pushed her away from his car and drove away

quickly, leaving her completely uninjured and wearing her shoes. He also said the motel room

was not in disarray when he left it.

¶ 39. Complainant’s version of events is corroborated by the evidence of her injuries,

which were consistent with the reported assault, the disarray of the hotel room, and the timing

from the clerk’s testimony and the emergency phone call. There is no evidence to corroborate

defendant’s story, and there is evidence to contradict it. Defendant claimed he left complainant

uninjured around midnight, and soon afterwards police officers and medical personnel found her

15
with covered-up bruises around her neck and fresh bruises around her eyes. There was evidence

that defendant’s left hand was swollen, which defendant testified was due to an earlier injury.

There was no evidence of other injuries. Defendant did not provide any evidence that his car was

damaged.

¶ 40. To be sure, even when the State’s case is strong, an error is not harmless if it

contributed to the conviction. See Oscarson, 2004 VT 4, ¶ 46 (holding error not harmless because

Court could not “say beyond a reasonable doubt that the erroneously admitted evidence did not

contribute to the jury’s verdict” (quotation and alteration omitted)). “We treat the damaging

potential of the excluded impeachment evidence as fully realized . . . .” State v. Malshuk, 2004

VT 54, ¶ 14, 177 Vt. 475, 857 A.2d 282 (mem.). Where the excluded evidence is of “limited

probative value” or likely to have minimal impact, the error is more likely to be harmless. See

State v. Atherton, 2016 VT 25, ¶ 25, 201 Vt. 512, 144 A.3d 311 (finding harmless erroneous

exclusion of evidence that witness had prior conviction for providing false information to police

officer because “its impact would have been minimal given the limited and cumulative nature” of

witness’s testimony); State v. Fuller, 168 Vt. 396, 408-09, 721 A.2d 475, 484 (1998) (finding

excluded evidence had “limited probative value at best” and concluding error was harmless, given

weakness of excluded evidence and strength of other evidence supporting State’s case).

¶ 41. Here, the excluded evidence was a “self-authenticating document” indicating that

complainant had previously been convicted of providing false information to a police officer. Only

the fact of the conviction was offered, “without any discussion about how, why, [or] where.” As

defense counsel represented to the trial court, this evidence was “relatively innocuous.” Certainly,

the context of the conviction—an apparently false claim that complainant’s father had assaulted

her—could have had an impact on the jury’s deliberations. But the context was never excluded;

it was not offered. What was excluded was merely the fact of the conviction. As in Haskins, “[t]he

excluded [evidence] did not go to the ultimate issue of defendant’s guilt or innocence,” and “it is

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difficult to say that the excluded [evidence] had any real significance.” 2016 VT 79, ¶ 30; see also

Oscarson, 2004 VT 4, ¶ 61 (finding harmless error where the error was “tangential” to State’s

case). I cannot conclude that the conviction document alone could so shake the jury’s assessment

of the scope and depth of the State’s evidence as to change its verdict. Given the strength of the

State’s case and the minimal value and impact of the excluded evidence, I would hold that the

error was harmless. I respectfully dissent.

¶ 42. I am authorized to state that Justice Carroll joins this dissent.

Chief Justice

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