Note: Decisions of a three-justice panel are not t o be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2010-290

MAY TERM, 2011

State of Vermont } APPEALED FROM: } }

v. } Superior Court, Franklin Unit, } Criminal Division } Peter J. Mertens } DOCKET NO. 1446-12-09 Frcr

Trial Judge: A. Gregory Rainville

In the above-entitled cause, the Clerk will enter:

Defendant appeals from a judgment of conviction, ba sed on a jury verdict, of first degree aggravated domestic assault. He contends the court erred in excluding evidence of the complainant’s use of marijuana. We affirm.

The record evidence may be summarized as follows. Complainant and defendant lived together in St. Albans for about five years. Their relationship, however, began to deteriorate in November 2009. Later that month, complainant visit ed New York to see her estranged husband of fifteen years. When she returned on the afterno on of December 2, 2009, she told defendant that she had slept with her husband and planned to resume their relationship. That evening, she fell asleep on the living room couch.

Complainant testified that she later awoke to a bur ning sensation on her face and discovered that defendant had placed a rope around her neck and was strangling her. Complainant struggled against the rope and managed to free herself. Defendant told her that he was going to kill her and then himself. When compl ainant tried to reach her cell phone, defendant grabbed it and broke it in half. Complai nant then retrieved some clothes and left the

residence. She drove to a motel in Swanton and che cked in for the evening. The motel manager testified that complainant was crying and appeared to be upset.

The next morning, complainant called her supervisor at work and told her about the incident. The supervisor picked her up and drove h er to the police station to make a report. The supervisor recalled that complainant was hysterical and distraught; she observed red marks on complainant’s neck that looked like burns. The off icer who interviewed complainant also observed marks on complainant’s face. Complainant told the officer that defendant had strangled her during the night with a clothesline.

Complainant consented to a search of her trailer, w hich the police conducted the following day. They found a piece of white rope wi th knots in it that matched complainant’s description of the rope used during the assault. T he officers interviewed defendant, who acknowledged that he became angry with complainant and broke her phone, but denied assaulting her. Defendant testified to the same ef fect at trial.2

The jury returned a verdict of guilty, and the tria l court denied a subsequent motion for judgment of acquittal or new trial. Defendant was sentenced to a term of three to five years. This appeal followed.

Defendant contends the trial court erred in exc luding evidence of complainant’s use of marijuana. The issue arose when the State filed a motion in limine to exclude reference to any alleged drug use by complainant based on a police o fficer’s statement that complainant was initially reluctant to consent to the search of her home because there was a marijuana pipe in the

residence. The court addressed the motion before t rial. Defense counsel opposed the motion, asserting that defendant would testify that he pick ed up two empty beer bottles, a bag of marijuana, and a pipe the morning after the inciden t. Counsel asserted that the evidence was relevant because marijuana could “impair . . . a pe rson’s ability to recall.” The court asked whether defendant had “actually see[n] her consumin g any of that,” and counsel acknowledged that defendant had not. Because actual consumption was not “witnessed or admitted,” the court found the evidence to be “way too speculative” and therefore only “marginally probative” and concluded that its admission would “be more prejudi cial than relevant and probative.” Accordingly, the court granted the motion to exclud e, subject to further consideration during the

course of trial.

A trial court enjoys “broad discretion” under V.R.E. 403 in balancing the probative value of evidence against its prejudicial effect, a nd we will not disturb its ruling absent an abuse of that discretion. State v. Brochu, 2008 VT 21, ¶ 75, 183 Vt. 269; State v. Ovitt, 2005 VT 74, ¶ 8, 178 Vt. 605 (mem.). The trial court here acte d well within its discretion in ruling that, as relevant to complainant’s ability to recall the inc ident, the proffer of the mere presence of marijuana and a marijuana pipe was speculative, and any “marginal” relevance was outweighed by its potential prejudicial effect. In contrast, complainant had admitted consuming a beer that night and was freely questioned by defense without objection as to that fact. Moreover, despite

the court’s failure to use the actual term “substan tial,” its reasoning clearly demonstrates that it found the minimal probative value of the evidence t o be substantially outweighed by the potential prejudice of introducing the subject of d rug use without more evidence to support it. Accordingly, we find no error in the trial court’s ruling, and no basis to disturb the judgment.

Affirmed.

BY THE COURT:

_______________________________________ Denise R. Johnson, Associate Justice

_______________________________________ Marilyn S. Skoglund, Associate Justice

_______________________________________ Brian L. Burgess, Associate Justice