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Sweet v. Roy4/26/2002
rise to liability" is admissible for "the determination of punitive damages").
The Wright case evidence was particularly relevant on punitive damages against the trust because it showed that Marcien and Mary Anne Roy were aware that Leon Roy had vandalized homes in the past as part of the scheme to gain ownership of the homes in the park. See Weeks v. Baker & McKenzie, 74 Cal. Rptr. 2d 510, 530-31 (Cal. Ct. App. 1998) (in sexual harassment case against lawyer and law firm, evidence that lawyer sexually harassed other employees in the past admissible on punitive damages since firm took no action to protect plaintiff).
Finally on this point, defendants argue that even if the prior bad act evidence was admissible under V.R.E. 404(b), it should have been excluded under V.R.E. 403 because its unfair prejudicial effect substantially outweighed its probative value. The trial court has broad discretion in determining whether the unfair prejudicial effect of evidence outweighs its probative value, and the burden of showing abuse of that discretion is a heavy one. See Ulm v. Ford Motor Co., 170 Vt. 281, 290, 750 A.2d 981, 989 (2000).
The court exercised its discretion in this case. It found that the evidence was clearly relevant to show Leon Roy's identity as the person who vandalized plaintiff's home and cut her electric line, defendants' motive in refusing to respond to and deal with plaintiff, and the continuing plan to gain ownership over all homes in the park. It found that the evidence would not have the primary purpose or effect of appealing to the emotions of the jurors and, therefore, was not unduly prejudicial. We add that plaintiff demonstrated a clear need for the evidence in the absence of any witness who saw the vandalism or the cutting of the electric line and could identify the perpetrator. See Winter, 162 Vt. at 400, 648 A.2d at 631 (in sexual assault case in which State offered evidence that the defendant assaulted another woman four years earlier, "State's need for the evidence is a major factor in the balancing process"). Because of the court's findings in the Wright case, the number of tenants and occupants who had similar experiences, and the continuing increase in the number of homes owned by defendants, the likelihood that the prior bad acts occurred was strong. See id. at 400-01, 648 A.2d at 632 (a Rule 403 factor is "how definitely the State has proved defendant's commission of the uncharged misconduct"). We agree with the trial court that the probative value of the evidence was high and the risk of unfair prejudice from it was relatively low. Accordingly, we affirm its decision to admit the prior bad act evidence.
C.
The third claim in support of defendants' request for a new trial is the exclusion of evidence of threats left on defendants' answering machine by plaintiff's ex-boyfriend, who is the father of plaintiff's daughter. The messages, expressed in aggressive and profane terms, threatened to harm "Mr. Roy" for harassing and inflicting stress on plaintiff. The ex-boyfriend lived in South Carolina, and the messages said he would fly to Vermont to carry out his threats.
Without calling the ex-boyfriend to testify, defendants sought to introduce the answering machine tapes in support of their counterclaim that plaintiff intentionally inflicted emotional distress on defendants through her agent, the ex-boyfriend. The court excluded the tapes on the ground that there was no evidence that the ex-boyfriend acted as an agent for plaintiff, and invited defendants' counsel to fill that foundational gap by testimony from plaintiff or the ex-boyfriend. The court also ruled that if the tapes were otherwise admissible, it would
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