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Sweet v. Roy4/26/2002
a minimum, a clear inference of the existence of a plan from the prior acts. At least two factors are crucial considerations in making this determination: similarity between the prior acts and the crime charged and proximity in time. . . . Other factors may also be considered, but the controlling consideration is whether the evidence tends to establish a scheme or plan of sexual molestation. Id. at 382, 534 A.2d at 194.
Other cases have reiterated the crucial considerations of similarity and proximity in time. See State v. LaBounty, 168 Vt. 129, 134, 716 A.2d 1, 5 (1998); State v. Winter, 162 Vt. 388, 396-98, 648 A.2d 624, 629 (1994); State v. Hurley, 150 Vt. 165, 169, 552 A.2d 382, 385 (1988). We explained in Winter, however, that there are no "hard-and-fast time limits" and that the "precise amount of elapsed time is less important than the relation between the passage of time and the inference that there is an overall plan to defendant's actions." 162 Vt. at 397, 648 A.2d at 629. Thus, we noted that in child sexual assault cases we would authorize the admission of "much earlier assaults on the victim when the evidence also shows such assaults have continued right up to the charged event." Id.
Defendants argue that the evidence of the events and outcome in the Wright case are inadmissible to show a plan because they occurred over a decade before the events that gave rise to this litigation and are not similar to those events. For two reasons, we disagree.
First, we believe the evidence met the Catsam and Winter standards such that its admission fell well within the discretion of the trial court. Plaintiff alleged that defendants had a plan to gain ownership of all mobile homes in the park even by unlawful methods. The court's 1987 conclusions and order in the Wright case found the plan that plaintiff alleged existed. Specifically, it found that defendants' policy of requiring owners to sell only to defendants was illegal, that defendants' refusal to approve sales of mobile homes to third parties based on reasons not provided in the park leases was illegal, and that defendants used illegal "strong-arm tactics" to persuade Mr. Wright to abandon his tenancy in the park. On the basis of these conclusions, the court issued injunctions against the first two practices and awarded damages for the third. Significantly, the injunctions were issued in favor of the State of Vermont, a plaintiff in the Wright case, so they applied to any prospective purchaser, including plaintiff in this case.
If plaintiff failed to show that anything occurred in pursuit of the plan between 1987 and 1997, defendants might have been in a position to complain about the lack of proximity in time. In fact, plaintiff showed that despite the injunction, the percentage of mobile homes in the park owned by defendants rose greatly from 13% in 1987 to 48% in 1999. She also showed that no home was sold to a new park resident between 1993 and 1997.
Finally, there was testimony that the plan, created in 1986, continued right up to the present. One of plaintiff's witnesses, Joe Candal, testified that he tried to sell his home for a year, proposing many purchasers to defendants, but they declined all of them. In frustration, Mr. Candal offered to sell the home to Leon Roy, who said he might have been interested a few months ago, but could not purchase it at that time because " he state's watching us pretty good."
As we said in Winter, the important consideration is the relation between the passage of time and the inference that there is "an overall plan to the defendant's actions." Id. The inference was strong that defendants' plan to gain ownership of all the mobile homes in their pa
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