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State v. Hendricks11/16/2001
eement until there has been an opportunity to consider the presentence report - to explicitly say so, we have not always required courts to follow subsection 11(e)(4) to the letter. See e.g., id. On the basis of this record, we cannot find that the court accepted the plea agreement, nor will we presume, as a matter of law, that it did. Accordingly, we reject defendant's assertion that he is entitled to specific performance of a plea agreement that the court did not accept.
II.
Defendant next contends that the trial court erred because, prior to sentencing, it reviewed family court files concerning defendant and the victim, "without prior notice to the parties." Defendant's claim is premised on an inaccurate factual representation. In fact, the court specifically advised the State and defendant that it would be reviewing relevant family court files prior to sentencing. The court stated, ou should also know . . . I've also called for the Family Court files up here so I'd have a chance to look at those records. . . . the rule requires that you know whatever it is I'm looking at. . . . you may want to take a look at this, unless you're aware of what's in there. . . . If you do want to take a look at them, and then because of what's in there you want more time, you can tell me that too.
Defendant concedes that he neither accepted the court's invitation to take the time to review the materials, nor objected to the court's review of them. Because defendant failed to object, he must demonstrate that the court committed plain error in order to prevail. V.R.Cr.P. 52(b); State v. Forant, 168 Vt. 217, 219, 719 A.2d 399, 401 (1998). "Plain error will be found only in rare and extraordinary cases where the error is obvious and strikes at the heart of defendant's constitutional rights or results in a miscarriage of justice." State v. Streich, 163 Vt. 331, 353, 658 A.2d 38, 53 (1995).
Defendant's plain error theory apparently rests on the assumption that the court's review of the family court files caused it to reject a plea agreement that it was otherwise bound to accept. Even if we assume review of the family court files was error, it cannot plausibly be maintained that the error was "plain" where the court was not bound to accept the plea agreement in the first instance. Moreover, there was ample evidence, apart from the family court records-including the victim's testimony, defendant's criminal record, and the fact that he was charged with felony violation of an abuse prevention order and violation of his conditions of release between the plea and sentencing hearings-to support the court's decision to reject the plea agreement. Defendant's claim of plain error is without merit.
III.
A. Bad Acts Evidence
Defendant next claims that the court erred in admitting prior bad acts evidence that should have been proscribed under V.R.E. 404(b) and 403. "We will reverse the trial court's decision to admit this evidence only if the court withheld or abused its discretion . . . and a substantial right of defendant was affected by the alleged error." State v. Kelley, 163 Vt. 325, 328, 664 A.2d 708, 710 (1995).
Prior to trial, the State gave notice to defendant of its intent to utilize prior bad act evidence pursuant to V.R.E. 404(b). Specifically, the State sought to use two previous incidents of physical violence between defendant and the same victim. One incident (the 1993 assault) resulted in defendant's conviction, and satisfied one element of the current charge under 13 V.S.A. § 1044(a)(2), requiring a prior domestic assault conviction. The second incident (the 1997 assault) constituted uncharged misconduct alleging that defendant a
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