State v. McCarthy

In State v. McCarthy, 156 Vt. 148, 589 A.2d 869, 873 (1991), the defendant was charged with lewd and lascivious conduct with his daughter, and the jury found him guilty. During the presentation of evidence, the prosecutor showed that in the past the defendant had been investigated by the SRS for having oral sex with his son. Defense counsel failed to object to this evidence, which came in through numerous witnesses, and the question on appeal was whether the admission of the prior bad act evidence was plain error. The Court held that it was because of the highly prejudicial effect of prior sexual misconduct evidence and the fact that "the case could have gone either way, depending upon whether the jury believed complainant beyond a reasonable doubt or believed defendant, who testified, or could not resolve the conflict in the testimony to convict." (McCarthy, 156 Vt. at 157, 589 A.2d at 875.) The Court summarized that holding as follows: "In summary, the court in this case erroneously admitted evidence of another alleged sexual assault on another of defendant's children, and the prosecution exploited the evidence unfairly to suggest that defendant generally committed acts of sexual misconduct on his children. In a case that depended ultimately on the credibility of defendant and the complainant, such evidence was incendiary. Because there is a substantial likelihood that defendant was convicted by this incendiary device and not by properly admitted evidence, we reverse." (Id. at 158, 589 A.2d at 875.)