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Sweet v. Roy4/26/2002
Defendants argue, however, that in order to use prior bad act evidence to prove identity, the acts must be so distinctive as to amount to a signature. Here, they argue, the acts of vandalism perpetrated on plaintiff were unique, and none of the witnesses were trying to force defendants to give him or her a lease. Thus, they argue the evidence was inadmissible to prove identity.
Defendants' argument is based on State v. Bruyette, 158 Vt. 21, 604 A.2d 1270 (1992), a sexual assault case in which the victim was unable to identify the perpetrator because she was blindfolded. The court admitted the testimony of the defendant's former girlfriend to describe certain sexual practices he liked to engage in, certain statements he frequently made during sex, and how he liked to use cocaine during sex. The practices and statements were similar to those that occurred with the victim, and the perpetrator had used cocaine during the sexual assault.
We upheld the admission of the evidence, noting that the pattern and characteristics of the prior act "must be so distinctive, in effect, to constitute the defendant's signature," id. at 27, 604 A.2d at 1273, and further described the standard as follows:
Although the prior acts of the accused and the charged acts do not have to be identical, they must possess common features that make it highly likely that the unknown perpetrator and the accused are the same person. Whereas a few common features that are unique may be sufficient, a larger number of them, less remarkable, but taken together, may also have significant probative value. Id. at 28, 604 A.2d at 1273.
For two reasons, evidence of the other acts in this case did not run afoul of the Bruyette standard.
First, as described above, plaintiff showed an overall plan that allowed admission of much of the evidence. The existence of the plan, and the prior finding that Leon Roy vandalized the home of Mark Wright, was relevant to show that Leon Roy was responsible for vandalizing plaintiff's mobile home. See J. Strong, supra § 190, at 661 (plan is relevant to show "the doing of the . . . act, the identity of the actor, or his intention"). Plaintiff did not have to meet the strict standard of Bruyette to admit prior bad act evidence to show identity in this case.
Second, we conclude that plaintiff did meet the Bruyette standard. Again, defendants quibble over minor differences between the vandalism perpetrated on plaintiff and that perpetrated on others. Defendants' "signature" was: they refused to deal openly with tenants' attempts to sell their homes to third parties; they refused to approve such sales; they refused any contact with purchasers of the homes; and they surreptitiously vandalized the homes of purchasers who attempted to occupy the homes in order to induce them to leave. Since defendants remained the owners and managers of the home throughout the period covered by the evidence, it was highly likely that the same person who engaged in this conduct in 1986 was the person who vandalized the homes of plaintiff and the other witnesses in 1996 and 1997. The Bruyette standard was met.
Much of the evidence was also admissible to prove motive, another ground specifically authorized by Rule 404(b). The classic case of using prior bad act evidence to show motive is State v. Wheel, 155 Vt. 587, 587 A.2d 933 (1990), in which the defendant was prosecuted for perjury for lying at an inquest to cover up her submission of false pay vouchers for days in which she did not work as an assistant judge. The court admitted evidence that the defendant did not work on days for which she claimed pay, but altered court records to make it appear she
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