Volume 158 — Vermont Reports

<bold>1. Criminal Law — Post-Conviction Relief — Collateral Attack</bold> Trial court at post-conviction-relief hearing properly entertained failure to object issue, despite its having been heard on direct appeal of conviction, since court did not definitively pass on whether failure to object was plain error, and failure was one of petitioner's many grounds for relief. <cross_reference>13 V.S.A. § 7133</cross_reference>. <bold>2. Constitutional Law — Right to Effective Counsel —</bold> <bold>Presumption</bold> Conduct of counsel at trial is presumed to be reasonable. U.S. Const. amend. VI; Vt. Const. ch. I, art. 10. <bold>3. Appeal and Error — Post-Conviction Relief — Findings</bold> Trial court findings in post-conviction-relief hearing that petitioner's attorney made several prejudicial errors at lewd and lascivious conduct trial were not disturbed, where they were supported by credible evidence. <cross_reference>13 V.S.A. § 7133</cross_reference>. <bold>4. Constitutional Law — Right to Effective Counsel — Standard</bold> <bold>of Review</bold> A defendant who challenges adequacy of counsel's assistance must show by a preponderance of evidence, first, that counsel's conduct does not measure up to prevailing standard of reasonably competent attorney, and second, that counsel's failure to meet standard prejudiced defendant such that there is a reasonable probability that, but for counsel's unprofessional errors, result of proceeding would have been different. U.S. Const. amend. VI; Vt. Const. ch. I, art. 10. <bold>5. Constitutional Law — Right to Effective Counsel — Standard</bold> <bold>of Review</bold> Issue of whether counsel errors in trial for lewd and lascivious conduct satisfied constitutional standard for ineffective assistance of counsel was remanded, since superior court failed to consider both prongs of test and that court was most appropriate judge of errors' weight. U.S. Const. amend. VI; Vt. Const. ch. I, art. 10.<page_number>Page 119</page_number>

<bold>1. Lewdness — Lewd and Lascivious Conduct — Intent</bold> Defendant did not preserve issue of whether court erred in not instructing jury that lewd and lascivious conduct was a specific-intent crime, where he made no argument concerning requisite mental state either during charge conference or when making motions preceeding jury's retiring. <cross_reference>13 V.S.A. § 2601</cross_reference>; V.R.Cr.P. 52(b). <bold>2. Appeal and Error — Plain Error — Situations Not Constituting</bold> Omission of jury instruction regarding specific intent in lewd and lascivious prosecution was not plain error. <cross_reference>13 V.S.A. § 2601</cross_reference>. <bold>3. Appeal and Error — Plain Error — Situations Not Constituting</bold> Defendant could not first request charge of lewd and lascivious conduct as lesser-included offense and then, when convicted of that offense, successfully claim on appeal that instruction was plain error meriting reversal, since defendant benefitted from, and was bound by, trial tactic he initiated. <cross_reference>13 V.S.A. § 2601</cross_reference>. <bold>4. Evidence — Past Acts — Admissibility</bold> Rule governing admissibility of bad acts evidence does not require exclusion if evidence is also relevant to another issue, such as knowledge or intent, as long as probative value is not substantially outweighed by danger of unfair prejudice. V.R.E. 404(b). <bold>5. Evidence — Past Acts — Admissibility</bold> Trial court did not err by allowing detective testimony that defendant in lewd and lascivious prosecution admitted "what had happened was a<page_number>Page 154</page_number> problem; that he had a problem before that he sought counseling for," since court decided that evidence was relevant to consent issue, not unduly prejudicial, and therefore admissible under bad acts evidence rule; no abuse of discretion was found in those decisions. <cross_reference>13 V.S.A. § 2601</cross_reference>; V.R.E. 404(b). <bold>6. Appeal and Error — Discretion of Lower Court — Abuse</bold> Lower court rulings will not be disturbed absent abuse of discretion. <bold>7. Criminal Law — Sentence — Presentence Report</bold> Where facts in presentence report are contested, court must either find by preponderence of evidence that contested fact is reliable or unreliable, or indicate that it will not take fact into account during sentencing. V.R.Cr.P. 32(c). <bold>8. Criminal Law — Sentence — Presentence Report</bold> Trial court erred in not striking victim statement in presentence report, since lewd and lascivious conduct defendant contested statement and court failed to either make finding regarding statement's reliability or state that it would not take statement into account when sentencing. <cross_reference>13 V.S.A. § 2601</cross_reference>; V.R.Cr.P. 32(c).

<bold>1. Res Judicata — Application — Generally</bold> In addition to prohibiting relitigation of identical issues already decided, res judicata bars issues between parties that could have been litigated in an earlier action. <bold>2. Res Judicata — Issues Barred — Particular Cases</bold> Trial court erred in directing verdict for town, on res judicata grounds, in action by landowners for town's breach of duty to maintain road; although plaintiffs could have raised certain issues relating to town's breach in earlier suit against neighbor in which town was joined, and these issues were barred, any breach occurring after first action could not possibly have been addressed at that time, and res judicata did not bar plaintiffs' second action to extent it addressed town's alleged post-judgment breach. <bold>3. Costs — Attorney Fees — Generally</bold> Generally, attorneys' fees are not recoverable absent a contractual provision or statute to the contrary. <bold>4. Trial — Law of the Case — Particular Cases</bold> In action by landowners for town's breach of duty to maintain road, trial court was not precluded from directing verdict for town on res judicata grounds, even though pretrial judge declined to enter summary judgment on that basis; pretrial judge believed factual development was required, he did not rule on merits of case, and his ruling did not create law of the case.

<bold>1. Motor Vehicles — License To Operate — Suspension</bold> State administrative motor vehicle license suspension procedure is not criminal, and defendant is not entitled to a jury trial, appointed counsel, protection against self-incrimination, proof beyond a reasonable doubt, or confrontation of witnesses, as those protections apply to criminal proceedings. U.S. Const. amends. V, VI; D.C.C.R. 80.5. <bold>2. Motor Vehicles — License To Operate — Suspension</bold> Defendant whose motor vehicle license was suspended under administrative suspension procedure lacked standing to challenge procedure as infringing on legislative power, where he did not complain of any specific effect of alleged constitutional violation on him. D.C.C.R. 80.5.<page_number>Page 276</page_number> <bold>3. Motor Vehicles — License To Operate — Suspension</bold> No violation of separation of powers existed in state supreme court-created administrative motor vehicle license suspension procedure, where civil suspension rule was authorized by both state constitution and statute, and constitution itself established judicial power for rule promulgation. Vt. Const. ch. II, §§ 5, 37; <cross_reference>23 V.S.A. § 1205</cross_reference>(p); D.C.C.R. 80.5. <bold>4. Motor Vehicles — License To Operate — Suspension</bold> Blood-alcohol test results were admissible in administrative motor vehicle license suspension hearing, despite defendant's claim that they were opinions based on speculation; rules of evidence did not apply to procedure, and even if they did, criticism went to weight of evidence, not admissibility. V.R.E. 703; D.C.C.R. 80.5.

<bold>1. Attorney and Client — Malpractice — Burden of Proof</bold> To recover on legal malpractice claim, plaintiff must prove both that defendant was negligent and that negligence proximately caused plaintiff's harm. <bold>2. Attorney and Client — Malpractice — Burden of Proof</bold> To recover on legal malpractice claim, former client had to show that she would have prevailed in case but for lawyer's failure. <bold>3. Executors and Administrators — Litigation Against the Estate</bold> <bold>— Particular Cases</bold> Plaintiff in claim against estate did not show it inequitable for her father's estate to retain increased value of father's property which plaintiff had maintained for 13 years, where caring was a labor of love, without any promise of reimbursement or reward, money for maintenance came from father and sale of father's timber, and plaintiff benefitted from living at property for 13 years without paying rent. <bold>4. Attorney and Client — Malpractice — Particular Defenses</bold> Attorney was not estopped from denying that estate claim, basis for client's allegation that attorney was negligent, could have prevailed, where he had not previously promised client that claim would be successful and client had not reasonably relied on attorney's representations.<page_number>Page 335</page_number>

<bold>1. Criminal Law — Statutory Provisions — Construction</bold> Term "open" in statute governing lewd and lascivious behavior means "undisguised, not concealed" and requires no more than one witness. <cross_reference>13 V.S.A. § 2601</cross_reference>. <bold>2. Criminal Law — Statutory Provisions — Construction</bold> Trial court properly denied defendant's motion for acquittal in lewd and lascivious behavior case, since fact a witness viewed victim's naked body sufficed to make defendant's removal of victim's clothing "open" for purposes of statute. <cross_reference>13 V.S.A. § 2601</cross_reference>. <bold>3. Constitutional Law — Due Process — Preservation of Evidence</bold> Unless a criminal defendant can show bad faith on part of police, failure to preserve potentially useful evidence does not constitute denial of due process. <bold>4. Constitutional Law — Due Process — Preservation of Evidence</bold> Police officer's failure to preserve notes taken from interviews with witness and victim in lewd and lascivious behavior case did not deprive defendant of due process, where bad faith on officer's part was neither alleged nor found. U.S. Const. amend. V.<page_number>Page 360</page_number> <bold>5. Jury — Instructions — Appeal</bold> There is no error in jury's charge if charge as a whole conveys true spirit and doctrine of law and there is no fair ground to say jury has been misled by it. <bold>6. Jury — Instructions — Appeal</bold> Trial court's charge in lewd and lascivious behavior case, taken as a whole, correctly conveyed state's burden of proof, despite court's twice saying jury's role was to seek the truth, since court specifically explained correct burden at least six times.